Printup Bros. & Co. v. Smith

Jackson, Chief Justice. This is an action brought by plaintiffs in error against defendants in error for a malicious prosecution of certain attachments and a bill in aid of them, enjoining plaintiffs162 in error from the prosecution of their claims in the attachment cases, which litigation was finally terminated adversely to defendants in error in October, 1879, and this action was brought in the spring of 1880. The declaration, fully set out by the reporter, was demurred to, as reported also, and the demurrer sustained and the action dismissed, ■on the ground, as certified in the bill of exceptions, that it was barred by the statute of limitations. By our statute in respect to actions for malicious prose- ■ rations on the criminal side of the court, the right of action •does not accrue until the prosecution terminates. So it would seem should be the rule in malicious prosecutions •of cases on the civil side of the court, in respect to the •time when the right of action accrues and the statute begins to run, unless in cases of seizure of personalty under ■execution, where the litigation is protracted by the claim interposed by the person whose personalty was seized. 'There the right of action would accrue whensoever the personalty was seized, and the statute would then begin 'to run, and four years after that time would bar the action. .Baker vs. Boozer, 58 Ga., 195. So in Persons vs. Jones, 12 Ga., 371, cited in Baker vs. Boozer, it was held that ■ one who knowingly transfers a usurious note to another, ignorant of the usury, is liable to repay; and the right of .action accrues the moment that the contract is consummated. Doubtless the court below put its judgment in this case •on that in 58th supra. Hez’e, as there, there was a seizure of the personalty— iron in this case — by attachment; in that case, by levy of •execution; in both cases, claims were put in, and there, as here, an examination of the original record of file in the clerk’s office shows that the damages claizned were for expenses, counsel fees, as well as the injury and loss to the personalty. There is, however, a clear distiziction in the cases in this, that the injunction sued out falsely and maliciously, as the declaration alleges, suspended all action [163] by these plaintiffs in error, suspended their claims, enjoined their interference with the iron, and kept matters pending until October, 1879, and then the case was decided and terminated, and this suit was brought to the next term. It will be observed that in Baker vs. Boozer, it was held that the claim, being a new suit brought by the party there suing for damage, could not suspend or change the statute of limitations, but here a court of equity intervenes and draws all within its grasp. It is doubtful to what extent the injunction did not stay the right to bring trespass about the seizure of the iron, while the court of chancery had it before it for adjudication. Moreover, garnishments were here issued and served to the detriment of the business of plaintiffs in error as bankers, and to the damage of their credit, as is alleged. Taking these distinctions between, this case and Baker vs. Boozer, and regarding this as a case for malicious prosecution in consecutive acts of seizure of personalty by attachments, garnishment proceedings, and interference by the harsh writ of injunction, procured falsely and maliciously, as the declaration, admitted by the demurrer to be true, makes it, and applying the analogy of the time when the right of action for malicious criminal prosecutions accrues, to-wit, the end of the prosecution, to civil proceedings, so without probable cause, and malicious, as this declaration makes this case to be, we hold that the right of action was only complete in this case when the cause, in its totality, terminated, to-wit, in October, 1879, and not in 1875, when the iron was first attached. Therefore we think the action not barred, and the judgment dismissing it erroneous. Such huge litigation as this was, if maliciously begun and prosecuted so long without good cause, must create much expenditure and loss, difficult to be calculated or estimated until the whole prosecution ends, and the rule fixed for rights of action to accrue for criminal prosecutions maliciously and without probable cause would seem proper [164] for rights of action to acorné for malicious civil prosecutions, and for the commencement of the running of the statute of limitations in those cases too. Let it be understood that this ruling is on the declaration, which the demurrer admits to be true. When the case is tried on issues of fact, in regard to malice, probable cause, damage, etc., all will depend on the evidence and the law applicable thereto. Judgment reversed.