Smith v. Otwell

Court of Appeals of Georgia

Smith v. Otwell

181 S.E. 493, 51 Ga. App. 741, 1935 Ga. App. LEXIS 456

CourtCourt of Appeals of Georgia

DecidedSeptember 16, 1935

Docket24462

StatusPublished

Cited by4 cases

This text of 181 S.E. 493 (Smith v. Otwell) 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

Smith v. Otwell, 181 S.E. 493, 51 Ga. App. 741, 1935 Ga. App. LEXIS 456 (Ga. Ct. App. 1935).

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Opinion

Stephens, J.

1. Where the defendant in a criminal prosecution settles with the prosecutor the claim which is the subject-matter in issue, the prosecution, although thereby terminated, is not terminated favorably to the defendant. Davison-Paxon Company v. Walker, 174 Ga. 532 (163 S. E. 212).

2. It being essential to a right of action for a malicious prosecution by a defendant in a criminal prosecution that the prosecution must have terminated favorably to the defendant, the petition, in a suit brought by the defendant in a criminal proceeding against the prosecutor, to recover damages for an alleged malicious prosecution, wherein the only allegation as respects the termination of the criminal proceedings is that the plaintiff, after the defendant had instituted criminal proceedings against him, “made an adjustment and settled the matter at a discount” with the prosecutor, and that the prosecution was never further pursued, but that “the warrant went dismissed by the operation of law,” fails to show a termination of the criminal prosecution favorably to the plaintiff as the defendant in the criminal prosecution, and therefore fails to set out a cause of action. See Waters v. Winn, 142 Ga. 138 (82 S. E. 537). The court properly sustained the demurrer to the petition.

Judgment affirmed.

Jenkins, P. J., and Sutton, J., concur.

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Stephens, J.

1. Where the defendant in a criminal prosecution settles with the prosecutor the claim which is the subject-matter in issue, the prosecution, although thereby terminated, is not terminated favorably to the defendant. Davison-Paxon Company v. Walker, 174 Ga. 532 (163 S. E. 212).

2. It being essential to a right of action for a malicious prosecution by a defendant in a criminal prosecution that the prosecution must have terminated favorably to the defendant, the petition, in a suit brought by the defendant in a criminal proceeding against the prosecutor, to recover damages for an alleged malicious prosecution, wherein the only allegation as respects the termination of the criminal proceedings is that the plaintiff, after the defendant had instituted criminal proceedings against him, “made an adjustment and settled the matter at a discount” with the prosecutor, and that the prosecution was never further pursued, but that “the warrant went dismissed by the operation of law,” fails to show a termination of the criminal prosecution favorably to the plaintiff as the defendant in the criminal prosecution, and therefore fails to set out a cause of action. See Waters v. Winn, 142 Ga. 138 (82 S. E. 537). The court properly sustained the demurrer to the petition.

Judgment affirmed.

Jenkins, P. J., and Sutton, J., concur.

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Bluebook (online)

181 S.E. 493, 51 Ga. App. 741, 1935 Ga. App. LEXIS 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-otwell-gactapp-1935.

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