Smith v. Otwell

Stephens, J. 1. Where the defendant in a criminal prosecution settles with the prosecutor the claim which is the subject-matter in issue, the prosecution, although thereby terminated, is not terminated favorably to the defendant. Davison-Paxon Company v. Walker, 174 Ga. 532 (163 S. E. 212). 2. 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 had instituted criminal proceedings against him, “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 favorably to the plaintiff as the defendant in the criminal prosecution, and therefore fails to set out a cause of action. See Waters v. Winn, 142 Ga. 138 (82 S. E. 537). The court properly sustained the demurrer to the petition. Judgment affirmed. Jenkins, P. J., and Sutton, J., concur.