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2018 Georgia Code 51-7-42 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 51-7-42 Case Law from Google Scholar Amendments to OCGA 51-7-42

TITLE 51 TORTS

Section 7. False Arrest, False Imprisonment, Malicious Prosecution, and Abusive Litigation, 51-7-1 through 51-7-85.

ARTICLE 3 MALICIOUS PROSECUTION

51-7-42. Inquiry before committing court or magistrate as prosecution.

For purposes of this article, an inquiry before a committing court or a magistrate shall amount to a prosecution.

(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.)

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 malicious 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 A.L.R. 157.

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