Absence of probable cause required.

- Before action of malicious prosecution can be pursued, not only must there have been termination of a criminal case favorably to the accused, but absence of probable cause for prosecution must appear. Meyers v. Glover, 152 Ga. App. 679, 263 S.E.2d 539 (1979), overruled on other grounds, McCord v. Jones, 168 Ga. App. 891, 311 S.E.2d 209 (1983).

Prosecution may be ended, within meaning of this section, either by action, or perhaps inaction, of the prosecutor or of the magistrate, the district attorney, or a grand or petit jury. Reed v. Arrington-Blount Ford, Inc., 148 Ga. App. 595, 252 S.E.2d 13 (1979).

Final termination of criminal case favorably to the defendant, and amounting to final ending of prosecution, is such a termination favorably to the defendant as constitutes a basis for a suit for malicious prosecution. Williams v. Marbut, 52 Ga. App. 588, 183 S.E. 820 (1936).

Allegation that proceeding had been abandoned by the defendant is proper allegation of successful termination thereof in favor of the plaintiffs. Tyler v. Upchurch, 31 Ga. App. 599, 121 S.E. 521 (1924); Hollinshed v. Shadrick, 95 Ga. App. 88, 97 S.E.2d 165 (1957).

Although compromise of parties not a termination.

- When an action has been compromised, this section does not apply. Waters v. Winn, 142 Ga. 138, 82 S.E. 537, 1915A L.R.A. 601, 1915D Ann. Cas. 1248 (1914); Laster v. Star Rental, Inc., 181 Ga. App. 609, 353 S.E.2d 37 (1987), aff'd, 190 Ga. App. 1, 378 S.E.2d 320, cert. denied, 493 U.S. 829, 110 S. Ct. 97, 107 L. Ed. 2d 61 (1989).

A voluntary abandonment of a prosecution merely by agreement or compromise does not constitute a favorable ending for the accused. Sykes v. South Side Atlanta Bank, 53 Ga. App. 450, 186 S.E. 464 (1936).

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 has instituted criminal proceedings against the plaintiff, 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 favorable to the plaintiff as the defendant in the criminal prosecution, and therefore fails to set out a cause of action. Smith v. Otwell, 51 Ga. App. 741, 181 S.E. 493 (1935).

Dismissal of warrant by magistrate at request of prosecutor, and dismissal of warrant by magistrate, without consent of prosecutor, constitute termination of the prosecution favorable to the plaintiff within the meaning of this section. Ayala v. Sherrer, 234 Ga. 112, 214 S.E.2d 548 (1975).

Favorable termination in commitment hearing.

- When the prosecutor announces before the magistrate at the commitment hearing that the prosecutor has no evidence to offer, procures an order discharging the accused and dismissing the warrant, and no further action is taken thereon, these facts may constitute a favorable determination. Page v. Citizens Banking Co., 111 Ga. 73, 36 S.E. 418 (1900); Sykes v. South Side Atlanta Bank, 53 Ga. App. 450, 186 S.E. 464 (1936).

Diligence of prosecutor prevents termination.

- The discharge of one arrested on a warrant will not operate as a termination of the prosecution if the prosecutor, with due diligence, carries on the case in a court of competent jurisdiction. Hartshorn v. Smith, 104 Ga. 235, 30 S.E. 666 (1898).

It is too early to bring action for malicious prosecution on heels of nolle prosequi because the plaintiff is still exposed to prosecution for the same offense. Price v. Cobb, 60 Ga. App. 59, 3 S.E.2d 131 (1939).

Filing of nolle prosequi may cause action to accrue subject to state's right to reinstate prosecution. However, the filing of a nolle prosequi by the prosecutor and dismissal of the action by the trial court constitutes prima facie a termination of the prosecution in favor of the person arrested and is sufficient to commence the running of the statute of limitations subject to the right of the state to reinstate the action within the six-month period. Bailey v. General Apt. Co., 139 Ga. App. 713, 229 S.E.2d 493 (1976).

Nolle prosequi becomes final termination if state takes no further action.

- When no further action is taken by the state to reinstate the indictment and toll the statute of limitations, the original nolle prosequi progresses from a prima facie termination of the action to an irrebuttable conclusion of finality. Bailey v. General Apt. Co., 139 Ga. App. 713, 229 S.E.2d 493 (1976).

Continuity of malicious prosecution is not necessarily broken by intervening entry of nolle prosequi on an indictment originally charging the defendant with the crime for which the defendant is later again indicted, tried, and acquitted, even though a previous action for malicious prosecution, based upon the first indictment, failed and was dismissed because the entry of nolle prosequi did not result in a termination of that prosecution favorable to the plaintiff or amount to any termination at all. Therefore, in an action for malicious prosecution on a final process, there is no necessity that the former prosecution based on the previous process must have terminated favorably to the plaintiff or terminated at all; it is the same prosecution on the final process that must be alleged to have terminated, and favorably to the plaintiff. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).

Cause of action for malicious prosecution was not defeated when a former indictment was procured at the instance of the defendants as prosecutors and nol prossed, and subsequently, a presentment, returned within six months of the nolle prosequi on the former indictment, was only returned by special presentment without instigation from the defendants in the technical sense of prosecutors. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).

Failure to find illegal articles named in search warrant is satisfaction of requirement that action must be terminated favorably to the plaintiffs. Hollinshed v. Shadrick, 95 Ga. App. 88, 97 S.E.2d 165 (1957).

Action for malicious prosecution is not restricted to presentment on which malicious prosecution is based and the plaintiff tried, but, at the option of the plaintiff, may include also any previous indictment or process on which a previous action for malicious prosecution was based but dismissed because such former criminal prosecution had not terminated as required by law; and this is true, notwithstanding the present presentment was a reindictment of the petitioner on the charge contained in the former indictment nol prossed under the sanction of the court. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).

Waiver of preliminary hearing irrelevant when case ultimately terminated in favor of criminal defendant.

- Fact that before favorable termination of the criminal case, the defendant, appearing before committing the magistrate before whom the criminal warrant which had been taken out by the prosecution for the defendant's arrest was returnable, waived a preliminary hearing and moved that the prosecution be transferred to the state court, which was done, did not alter the proposition that the case finally resulted favorably to the defendant and as such formed the basis of a suit by the defendant for malicious prosecution. Williams v. Marbut, 52 Ga. App. 588, 183 S.E. 820 (1936).

When after levy of distress warrant no counter-affidavit is filed and property is sold to satisfy alleged indebtedness for rent, prosecution of such proceeding is not at end so as to give right of action so as to give right of action for a malicious use of legal process to the alleged tenant against the person suing out the distress warrant; but in such a case it is essential to the right of action referred to that an issue should have been formed by a counter-affidavit filed, and that this issue should have terminated favorably to the alleged tenant. Sparrow v. Weld, 47 Ga. App. 254, 170 S.E. 301 (1933).

When arrest warrant is dismissed after hearing evidence, verdict of guilty upon indictment charging same offense precludes recovery for malicious prosecution on the ground of probable cause as well as lack of favorable termination of the prosecution. Ayala v. Sherrer, 234 Ga. 112, 214 S.E.2d 548 (1975).

Statute of limitations.

- Actions for malicious prosecution, for malicious abuse of legal process, for false arrest or false imprisonment, or for malicious use of civil process were all actions for damages for injuries to the person of the party complainant; and under former Code 1933, § 3-1003 (see now O.C.G.A. § 9-3-33) such actions were not barred until two years after the same arise. McCullough v. Atlantic Ref. Co., 50 Ga. App. 237, 177 S.E. 601 (1934), rev'd on other grounds, 181 Ga. 502, 182 S.E. 898 (1935).

A suit for malicious prosecution must be brought within two years after the underlying criminal prosecution is ended in the plaintiff's favor. Daniel v. Georgia R.R. Bank & Trust Co., 255 Ga. 29, 334 S.E.2d 659 (1985) (underlying prosecution was nolle prossed).

Trial court erred by granting summary judgment in favor of the defendant on the malicious prosecution claim based on the prosecution occurring outside the policy period because since the insurance policy did not specify, coverage was triggered on the claim when the insured set in motion the legal machinery of the state; thus, the statute of limitation did not begin to run until favorable termination of the underlying criminal proceeding against the plaintiff, therefore, the claim was timely. Zook v. Arch Specialty Ins. Co., 336 Ga. App. 669, 784 S.E.2d 119 (2016).

Trigger time for malicious prosecution claim.

- Georgia Court of Appeals adopts the majority rule that when the contract does not specify, insurance coverage is triggered on a potential claim for malicious prosecution when the insured sets in motion the legal machinery of the state. Zook v. Arch Specialty Ins. Co., 336 Ga. App. 669, 784 S.E.2d 119 (2016).

Sufficiency of complaint.

- When the plaintiff was arrested and prosecuted under a valid warrant and a valid accusation and the petition alleged that the plaintiff's prosecution was without probable cause and with malice; that the prosecution terminated favorably to the plaintiff; and that the defendants knew the plaintiff was not guilty of the offense for which the defendants caused the plaintiff to be prosecuted, the petition set out a cause of action. Davison-Paxon Co. v. Norton, 69 Ga. App. 77, 24 S.E.2d 723 (1943).

Alleging abandonment of prosecution.

- While the procuring from the committing court of an order discharging the defendant in a warrant amounts to a termination of the prosecution when no further action is taken, the mere allegation of such discharge, without at least showing in general terms that the prosecution has been terminated, does not meet the requirements of this section. Rogers Co. v. Murray, 35 Ga. App. 49, 132 S.E. 139 (1926).

Cited in Marable v. Mayer, 78 Ga. 710, 3 S.E. 429 (1887); McDaniel v. Nelms, 96 Ga. 366, 23 S.E. 407 (1895); Dugas v. Darden, 65 Ga. App. 394, 15 S.E.2d 901 (1941); White v. Holderby, 192 F.2d 722 (5th Cir. 1951); Godfrey v. Home Stores, Inc., 101 Ga. App. 269, 114 S.E.2d 202 (1960); Ayala v. Sherrer, 135 Ga. App. 431, 218 S.E.2d 84 (1975); Monumental Properties, Inc. v. Johnson, 136 Ga. App. 39, 220 S.E.2d 55 (1975); Primas v. Saulsberry, 152 Ga. App. 88, 262 S.E.2d 251 (1979).

Am. Jur. 2d.

- 52 Am. Jur. 2d, Malicious Prosecution, § 6 et seq.

C.J.S.

- 54 C.J.S., Malicious Prosecution, §§ 5 et seq., 89 et seq.

ALR.

- Unreversed conviction as conclusive in action for malicious prosecution, 69 A.L.R. 1062.

Discontinuance of prosecution because of defendant's failure to submit himself to jurisdiction as termination necessary to support action for malicious prosecution, 128 A.L.R. 929.

Dismissal by magistrate or other inferior court for lack or insufficiency of evidence as a final termination of prosecution as regards action for malicious prosecution, 135 A.L.R. 784.

Discharge in habeas corpus proceedings as constituting favorable termination of criminal proceedings requisite to maintenance of malicious prosecution action, 30 A.L.R.2d 1128.

Admissibility and permissible use, in malicious prosecution action, of documentary evidence showing that prior criminal proceedings against instant plaintiff were terminated in his favor, 57 A.L.R.2d 1086.

When cause of action accrues, for purpose of starting the running of the statute of limitations against an action for malicious prosecution, 87 A.L.R.2d 1047.

Termination of criminal proceedings as result of compromise or settlement of accused's civil liability as precluding malicious prosecution action, 26 A.L.R.4th 565.

Nature of termination of civil action required to satisfy element of favorable termination to support action for malicious prosecution, 30 A.L.R.4th 572.

Construction and application of Federal Tort Claims Act provision (28 USCA § 2680(h)) excepting from coverage claims arising out of false imprisonment, false arrest, malicious prosecution, or abuse of process, 152 A.L.R. Fed. 605.