Reese v. Clayton County

363 S.E.2d 618, 185 Ga. App. 207, 1987 Ga. App. LEXIS 2474

• Court: Court of Appeals of Georgia
• Decided: December 4, 1987
• Docket: 74537
• Status: Published

Opinions

Beasley, Judge.

Reese appeals from the granting of summary judgment to all defendants (Clayton County, the sheriff, and two deputies) on her two-count complaint alleging false arrest and false imprisonment.

In June 1981, a bad check warrant was issued in Fayette County naming “Gloria Ann Reese” as the defendant. The warrant was then sent to Clayton County to be executed. On September 22,1981, plaintiff Gloria Anita Reese was arrested and taken into custody by the defendants. She posted bond and was released the same day. In June 1985, the charges against plaintiff were dismissed, Gloria Ann Reese having been prosecuted for the check. Plaintiff’s complaint was filed in November 1985.

Defendants filed their motion on statute of limitation grounds, alleging that her only cause of action was for false imprisonment and the two-year statute had run. OCGA § 9-3-33. We agree.

Georgia provides three causes of action for redress of injuries suffered due to improper use of the criminal process: OCGA § 51-7-1 (false and malicious arrest), OCGA § 51-7-20 (false imprisonment), and OCGA § 51-7-40 (malicious prosecution). The efficacy of each depends upon the particular facts of a situation and who is being sued. Only one, if any, will lie as to a particular defendant in particular circumstances.

Here, the warrant issued was not for plaintiff but for one “Gloria Ann Reese.” There never having been a warrant for plaintiff, as to her the warrant issued was void. Wilson v. Bonner, 166 Ga. App. 9, 10 (303 SE2d 134) (1983); Massey Stores v. Reeves, 111 Ga. App. 227, (141 SE2d 227) (1965). Her arrest was, in effect, without a warrant and was therefore “unlawful detention,” if anything. See Williams v. Smith, 179 Ga. App. 712 (1) (348 SE2d 50) (1986). That being so, plaintiff’s sole remedy against these defendants (the county and certain of its law enforcement officers) was for false imprisonment. Lovell v. Drake, 60 Ga. App. 325 (3 SE2d 783) (1939); see Gordon v. West, 129 Ga. 532 (1) (59 SE 232) (1907); Courtenay v. Randolph, 125 Ga. App. 581 (1) (188 SE2d 396) (1972); Lowe v. Turner, 115 Ga. App. 503, 506 (2) (154 SE2d 792) (1967); Smith v. Embry, 103 Ga. App. 375, 377 (2) (119 SE2d 45) (1961).

The only essential elements for false imprisonment are (1) detention and (2) the unlawfulness thereof. OCGA § 51-7-20; Burrow v. K-Mart Corp., 166 Ga. App. 284, 287 (3) (304 SE2d 460) (1983). The action must be brought within two years of its accrual, OCGA § 9-3-33, which is from the release from imprisonment. Meyers v. Glover, 152 Ga. App. 679, 680 (2) (263 SE2d 539) (1979) (overruled as to malicious arrest only, which does require as an element the cessation of the underlying prosecution, in McCord v. Jones, 168 Ga. App. 891 (311 SE2d 209) (1983)). Since plaintiff was released on September 22, 1981, her action filed on November 19, 1985 was barred by the statute of limitation.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Carley and Pope, JJ., concur. Deen, P. J., concurs specially. Birdsong, C. J., Sognier and Benham, JJ., dissent.