Earlywine v. Strickland

Court of Appeals of Georgia

Earlywine v. Strickland

244 S.E.2d 118, 145 Ga. App. 626, 1978 Ga. App. LEXIS 2068

CourtCourt of Appeals of Georgia

DecidedApril 6, 1978

Docket55538

StatusPublished

Cited by8 cases

This text of 244 S.E.2d 118 (Earlywine v. Strickland) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Earlywine v. Strickland, 244 S.E.2d 118, 145 Ga. App. 626, 1978 Ga. App. LEXIS 2068 (Ga. Ct. App. 1978).

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Opinion

Webb, Judge.

An action for malicious prosecution instituted within six months from the entry of nolle prosequi of a criminal prosecution, upon which the action was predicated, is premature and dismissal was proper.

One of the five essential elements for a cause of action for malicious prosecution is "that the criminal prosecution was finally terminated legally in favor of the plaintiff.” Powell v. Cohen, 116 Ga. App. 48, 50 (156 SE2d *627 495) (1967). "The prosecution must be ended before the right of action accrues.” Code Ann. § 105-806.

Submitted March 7, 1978 Decided April 6, 1978. David S. Marotte, for appellant. Irvan A. Pearlberg, for appellee.

Under Code Ann. § 27-1801, "a nolle prosequi may be entered by the solicitor with the consent of the court. In such a case a new indictment may be found within six months from the time the first indictment is quashed or the nolle prosequi entered. . . Its effect therefore is not necessarily the ending of the prosecution, but the continuance of the same. Not until the expiration of the six-months period within which a new indictment for the same offense may be preferred, or some other act or declaration which amounts to an abandonment, is the prosecution at an end.” Price v. Cobb, 60 Ga. App. 69, 61-62 (3 SE2d 131) (1939); Code Ann. § 27-601. Bailey v. General Apt. Co., 139 Ga. App. 713 (229 SE2d 493) (1976), is not to the contrary.

Judgment affirmed.

Quillian, P. J., and McMurray, J., concur.

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Webb, Judge.

An action for malicious prosecution instituted within six months from the entry of nolle prosequi of a criminal prosecution, upon which the action was predicated, is premature and dismissal was proper.

One of the five essential elements for a cause of action for malicious prosecution is "that the criminal prosecution was finally terminated legally in favor of the plaintiff.” Powell v. Cohen, 116 Ga. App. 48, 50 (156 SE2d *627 495) (1967). "The prosecution must be ended before the right of action accrues.” Code Ann. § 105-806.

Submitted March 7, 1978 Decided April 6, 1978. David S. Marotte, for appellant. Irvan A. Pearlberg, for appellee.

Under Code Ann. § 27-1801, "a nolle prosequi may be entered by the solicitor with the consent of the court. In such a case a new indictment may be found within six months from the time the first indictment is quashed or the nolle prosequi entered. . . Its effect therefore is not necessarily the ending of the prosecution, but the continuance of the same. Not until the expiration of the six-months period within which a new indictment for the same offense may be preferred, or some other act or declaration which amounts to an abandonment, is the prosecution at an end.” Price v. Cobb, 60 Ga. App. 69, 61-62 (3 SE2d 131) (1939); Code Ann. § 27-601. Bailey v. General Apt. Co., 139 Ga. App. 713 (229 SE2d 493) (1976), is not to the contrary.

Judgment affirmed.

Quillian, P. J., and McMurray, J., concur.

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244 S.E.2d 118, 145 Ga. App. 626, 1978 Ga. App. LEXIS 2068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/earlywine-v-strickland-gactapp-1978.

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