O.C.G.A.
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
For purposes of this article, an inquiry before a committing court or a magistrate shall amount to a prosecution.
History
(Orig. Code 1863, § 2930; Code 1868, § 2937; Code 1873, § 2988; Code 1882, § 2988; Civil Code 1895, § 3849; Civil Code 1910, § 4445; Code 1933, § 105-805; Ga. L. 1983, p. 884, § 4-1.)
Annotations
JUDICIAL DECISIONS Swearing out of warrant, when not followed by arrest, is not prosecution under this section. Swift v. Witchard, 103 Ga. 193, 29 S.E. 762 (1897). If defendant is brought before magistrate, this section applies, even though the prosecution is later abandoned. Page v. Citizens Banking Co., 111 Ga. 73, 36 S.E. 418 (1900). Plaintiff ’s appearance before the municipal court amounted to a prosecution. K-Mart Corp. v. Lovett, 241 Ga. App. 26, 525 S.E.2d 751 (1999). Inquiry defined. - Proceeding in which, after the plaintiff ’s arrest, the plaintiff was brought before a magistrate who asked questions and bound the plaintiff ’s case over for the grand jury and set bond, was an inquiry even though the plaintiff did not answer any questions, and was sufficient ‘‘prosecution’’ to provide the basis for a malicious prosecution action. Branson v. Donaldson, 206 Ga. App. 723, 426 S.E.2d 218 (1992). Attorney’s 42 U.S.C. § 1983 mali-
cious prosecution claim against a police officer failed because the attorney was unable to show that the attorney’s U.S. Const., amend. 4 rights were violated because the attorney was freed on bail immediately after appearing before a magistrate judge on the day following the attorney’s arrest, which was warrantless and therefore did not constitute legal process or an inquiry under O.C.G.A. § 51-7-42. Love v. Oliver, 450 F. Supp. 2d 1336 (N.D. Ga. 2006). Cited in Hartshorn v. Smith, 104 Ga. 235, 30 S.E. 666 (1898); South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 182 S.E. 61 (1935); Peppas v. Miles, 82 Ga. App. 438, 61 S.E.2d 429 (1950); Wall v. Spurlock, 85 Ga. App. 379, 69 S.E.2d 379 (1952); Gaddy v. Gilbert, 140 Ga. App. 508, 231 S.E.2d 403 (1976); Bradley v. Tenneco Oil Co., 146 Ga. App. 161, 245 S.E.2d 862 (1978); Oden & Sims Used Cars, Inc. v. Thurman, 165 Ga. App. 500, 301 S.E.2d 673 (1983); Jones v. Warner, 301 Ga. App. 39, 686 S.E.2d 835 (2009).
RESEARCH REFERENCES Am. Jur. 2d. - 52 Am. Jur. 2d, Malicious Prosecution, § 7 et seq. C.J.S. - 54 C.J.S., Malicious Prosecution, §§ 9et seq., 59 et seq.
ALR. - Malicious prosecution predicated upon prosecution, institution, or instigation of administrative proceedings, 143 ALR 157.
Notes of Decisions
Cited in
14
cases (
1 in the last 5 years), 1983–2025 · leading case:
Renton v. Watson, 739 S.E.2d 19 (Ga. Ct. App. 2013).
Renton v. Watson, 739 S.E.2d 19 (Ga. Ct. App. 2013).
· cites it 2× “See also OCGA § 51-7-42 (“[A]n inquiry before a committing court or a magistrate shall amount to a prosecution.”
Jones v. Warner, 686 S.E.2d 835 (Ga. Ct. App. 2009).
· cites it 2× “” OCGA § 51-7-42. The gravamen of the complaint [for malicious prosecution] is the absence of probable cause on the part of the person instituting the prosecution.”
Fleming v. U-Haul Co., 541 S.E.2d 75 (Ga. Ct. App. 2000).
· cites it 2× “OCGA § 51-7-42; Page v. Citizens Banking Co.”
J. C. Penney Co. v. Miller, 354 S.E.2d 682 (Ga. Ct. App. 1987).
· cites it 2× “” This being merely a restatement of the probable cause standard (see OCGA § 51-7-42), it follows that the adjudication of guilt entered by the juvenile court also protects the appellant from liability for false imprisonment.”
K-Mart Corp. v. Lovett, 525 S.E.2d 751 (Ga. Ct. App. 1999).
· cites it 2× “14 OCGA § 51-7-42; see Branson v. Donaldson, 206 Ga.”
Oden & Sims Used Cars, Inc. v. Thurman, 301 S.E.2d 673 (Ga. Ct. App. 1983).
· cites it 2× “Finally, Oden testified that if he had not left a draft with Martin Burks before he picked up the subject vehicle, he would not have had the right to sell it.”
Love v. Oliver, 450 F. Supp. 2d 1336 (N.D. Ga. 2006).
· cites it 4× “” O.C.G.A. § 51-7-42. In Branson v. Donaldson, 206 Ga.”
Branson v. Donaldson, 426 S.E.2d 218 (Ga. Ct. App. 1992).
· cites it 2× “(c) Appellant’s contention that the proceedings brought against appellee did not rise to the level of a “prosecution” is also without merit.”
King v. King, 342 F. Supp. 3d 1364 (M.D. Ga. 2018).
· cites it 2× “O.C.G.A. § 51-7-42. Accordingly, under Georgia law, her claims for malicious prosecution constitute "the exclusive remedy.”
Taylor v. Villegas (S.D. Ga. 2019).
· cites it 2× “’” 6 It is not clear that the proceedings against Plaintiff qualify as a “prosecution.”
Deborah B. Smith v. Bill Grant (Ga. Ct. App. 2025).
· cites it 2× “” OCGA § 51-7-42. In this case, although the aggravated stalking charge was dismissed after it was confirmed that the disorderly conduct and protective order had been discharged, Smith appeared before “a committing court” twice during her incarceration.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.