Tyler v. Upchurch

121 S.E. 521, 31 Ga. App. 599, 1924 Ga. App. LEXIS 85

• Court: Court of Appeals of Georgia
• Decided: February 9, 1924
• Docket: 14740
• Status: Published

Opinions

Stephens, J.

(After stating the foregoing facts.) While the dismissal of a criminal warrant by a municipal-court judge after a hearing thereon does not necessarily and in every case amount to an ending or an abandonment of the prosecution, so as to furnish the necessary-ground for a suit by the defendant for malicious prosecution, since the prosecutor may pursue the prosecution further (Hartshorn v. Smith, 104 Ga. 235, 30 S. E. 666), and while in a suit against the-prosecutor for malicious prosecution an allegation that the criminal warrant upon which the prosecution was instituted was dismissed by the court after a hearing thereon may not -amount to an allegation that the prosecution has ended, yet, where it is alleged in the petition that as a result of such dismissal “said prosecution is now fully determined and ended,” the latter allegation sufficiently alleges as a matter of fact that the prosecution has ended, and it is not necessary to allege further that the prosecution was abandoned by the prosecutor or that the prosecutor had no intention of further pursuing the prosecution. Where the petition otherwise alleges sufficient facts as a basis for a suit for malicious prosecution, as in the case under consideration, there is no error in overruling a general demurrer to the petition.

Judgment affirmed.

Jenkins, P. J., concurs. Bell, J., dissents.