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Ellis v. Knowles

81 S.E.2d 884, 90 Ga. App. 40, 1954 Ga. App. LEXIS 621
CourtCourt of Appeals of Georgia
DecidedApril 12, 1954
Docket34948
StatusPublished
Cited by25 cases

This text of 81 S.E.2d 884 (Ellis v. Knowles) 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.

Bluebook
Ellis v. Knowles, 81 S.E.2d 884, 90 Ga. App. 40, 1954 Ga. App. LEXIS 621 (Ga. Ct. App. 1954).

Opinion

Felton, C. J.

1. The court did not err in overruling the defendants’ general demurrers. The averments necessary to state a cause of action for malicious prosecution are contained in the petition in this case, to wit: (1) prosecution for a criminal offense; (2) under a valid warrant, accusation or summons; (3) that the prosecution terminated in favor of the plaintiff; (4) that it was instituted maliciously; (5) that it was instituted without probable cause; and (6) that it damaged the plaintiff. Cary v. Highland Bakery, Inc., 50 Ga. App. 553 (179 S. E. 197).

2. The tenants of the defendants had a right to invite the plaintiff upon the leased premises. Horsely v. State, 16 Ga. App. 136 (2) (84 S. E. 600); Mitchell v. State, 12 Ga. App. 557 (2) (77 S. E. 889). The allegations of the petition do not affirmatively show that any right of the landlord was violated. It was not necessary for the plaintiff to allege that the defendants actually knew that the plantiff had been invited on the premises by the tenants. If the defendants sought to eject the plaintiff or to prosecute him for trespass without inquiring as to the plaintiff’s right to be on the premises, they did so at their own risk.

3. Code § 26-3002, defining trespass, does not apply to open or uncultivated real estate. Wiggins v. State, 119 Ga. 216 (3) (46 S. E. 86).

4. The petition does not show affirmatively that there was probable cause for the issuance of the warrant.

The court did not err in overruling the defendants’ general demurrers.

Judgment affirmed.

Gardner, P. J., and Quillian, J., concur. Nichols, J., disqualified.

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Bluebook (online)
81 S.E.2d 884, 90 Ga. App. 40, 1954 Ga. App. LEXIS 621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-knowles-gactapp-1954.