Summary
In Turner the affidavit failed to state the time of commission, the place of occurrence and a description of the offense.
Summary of this case from Courtenay v. RandolphOpinion
42617.
ARGUED MARCH 6, 1967.
DECIDED MARCH 17, 1967. REHEARING DENIED MARCH 29, 1967.
Malicious prosecution. Elbert Superior Court. Before Judge Williford.
L. D. Skaggs, for appellant.
Grant Matthews, William F. Grant, C. G. Matthews, John C. Walden, for appellees.
1. Since the plaintiff's arrest was based upon a void warrant and accusation, the petition does not state a cause of action for malicious prosecution.
2. The petition, although failing to state a cause of action under the designated theory of malicious prosecution, contained allegations sufficient to state a cause of action for false imprisonment; therefore, the court erred in sustaining the general demurrer to the petition.
ARGUED MARCH 6, 1967 — DECIDED MARCH 17, 1967 — REHEARING DENIED MARCH 29, 1967 — CERT. APPLIED FOR.
Horace N. Lowe brought an action, denominated as one for malicious prosecution, against Turner Concrete, Inc. and its president, J. M. Turner. The petition alleged substantially as follows: On December 13, 1962, the plaintiff issued a check on the account of H. N. Lowe Construction Co., Inc., of which he was president, payable to and in the amount of his company's indebtedness on open account with the defendants, to whom he mailed the check. The check was dishonored by the payor bank because of insufficient funds. On April 5, 1963, the defendants brought an action on open account against the plaintiff's company in the City Court of Athens, resulting in a default judgment for the present defendants and a nulla bona return on the fi. fa. issued thereon. On November 19, 1963, defendant Turner obtained from a justice of the peace in Elberton a warrant for the plaintiff's arrest for the misdemeanor of cheating and swindling by passing a worthless check. The plaintiff was arrested on January 13, 1964, and made bond to appear at the February term, 1964, of the City Court of Elberton. The plaintiff was forced to incur attorney's fees to defend against the charge, of which he was innocent. On February 8, 1965, the charge against the plaintiff was dismissed by the Solicitor and Judge of the City Court of Elberton. The affidavit filed by defendant Turner was false and malicious.
The plaintiff appeals from the judgment of the superior court sustaining the defendants' general demurrer to the petition.
1. "An arrest based upon a warrant which is void furnishes no basis for action for malicious prosecution." J. C. Penney Co. v. Green, 108 Ga. App. 155, 157 ( 132 S.E.2d 83) and cit.; Cary v. Highland Bakery, Inc., 50 Ga. App. 553, 555 ( 179 S.E. 197). The new and stricter statutes dealing with the form and contents of affidavits and warrants, Ga. L. 1962, p. 668 ( Code Ann. §§ 27-103.1, 27-104, 27-105), omit the "substantial compliance" language formerly used and, hence, require compliance of affidavits and warrants with the statutory standard of required information. Lovett v. State, 111 Ga. App. 295 ( 141 S.E.2d 595). Code § 27-103 (Ga. L. 1865-6, p. 235) requires the statement of the offense, the county in which the same was committed and the time when committed. Code Ann. § 27-103.1 contains the additional requirements of the date and place of occurrence of the offense, against whom such offense was committed, and a statement describing the offense.
The affidavit in the present case, made by J. M. Turner d/b/a Turner Concrete, Inc., stated the offense as "Passing a worthless check ($1,289.50)" and named the country (Elbert) and date (December 13, 1962) of its commission. Neither the affidavit nor the warrant states the time when committed (other than the date), the place of occurrence of the offense (other than the county), against whom the offense was committed (other than showing who made the affidavit) nor a description of the offense, other than "passing a worthless check ($1,289.50)." The accusation describes the charge against the plaintiff thus: "For the said H. N. Lowe in the said county with force and arms did then and there unlawfully draw and utter a certain draft or check in the amount of $1,289.90 [sic] and having drawn said draft or check the defendant did not then and there have in the hands of said bank sufficient funds to pay said draft and did not then and there within 30 days thereafter deposit with said bank sufficient funds to pay said draft or check." The accusation purports to charge an offense under Code Ann. § 13-9933 (Ga. L. 1962, p. 593), but fails to allege two necessary elements of that statute, viz., scienter and intent to defraud, hence was a void accusation. McCain v. Smith, 221 Ga. 353 ( 144 S.E.2d 522). Furthermore, the accusation is based upon the affidavit of one L. Adger Moore, whereas the warrant was issued on the defendant Turner's affidavit. While it has been held that it is not essential to the validity of the accusation that the warrant be issued on the affidavit on which the accusation is based ( Brown v. State, 109 Ga. 570 (2) ( 34 S.E. 1031)), the accusation does not even state the date of the alleged affidavit (other than "1964"), a fact we think the plaintiff accused was entitled to know. A further defect is the variance between the amounts of the check as alleged in the accusation and in the warrant.
The plaintiff's arrest having been based upon a void warrant and accusation, the petition does not state a cause of action for malicious prosecution under the authorities hereinabove cited.
2. Even though the petition fails to state a cause of action under the theory designated by the plaintiff, viz., malicious prosecution, if it states a cause of action under any legal theory, the general demurrer should have been overruled. Smith v. Embry, 103 Ga. App. 375 (1) ( 119 S.E.2d 45); Hubbard v. Bibb Brokerage Co., 44 Ga. App. 1, 17 ( 160 S.E. 639) and cit.; Malone v. Robinson, 77 Ga. 719.
The petition also does not state a cause of action for malicious arrest. "If the warrant or process is void, an action for false imprisonment is the exclusive remedy [cases cited]." Lovell v. Drake, 60 Ga. App. 325 ( 3 S.E.2d 783); Godfrey v. Home Stores, Inc., 101 Ga. App. 269, 274 ( 114 S.E.2d 202); Smith v. Embry, supra, p. 378.
To sustain an action for false imprisonment it is not necessary to show malice and want of probable cause, but only that the imprisonment was unlawful. Sheppard v. Hale, 58 Ga. App. 140, 142 ( 197 S.E. 922); Vlass v. McCrary, 60 Ga. App. 744, 745 (3) ( 5 S.E.2d 63). Although it is not alleged that the plaintiff was actually placed in prison, all that is required under Code § 105-901 is the "unlawful detention . . . for any length of time," including either a detention or an arrest, which is alleged in the present petition. Conoly v. Imperial Tobacco Co., 63 Ga. App. 880, 885 ( 12 S.E.2d 398) and cit. The imprisonment was unlawful in that it was based upon a void warrant, as hereinabove held. Furthermore, "[i]t is no defense that a person perpetrating an illegal arrest or imprisonment is ignorant of the illegality of his acts. Knowingly committing or participating in an act which is in fact illegal is sufficient to fix liability." Stembridge v. Wright, 32 Ga. App. 587 (5) ( 124 S.E. 115).
The petition stated a cause of action at least for false imprisonment; therefore, the court erred in its judgment sustaining the general demurrer thereto.
Judgment reversed. Hall and Eberhardt, JJ., concur.