Opinion
36478.
DECIDED FEBRUARY 6, 1957.
Tort; trespass and malicious prosecution. Before Judge Manning. Cobb Superior Court. March 27, 1956.
Dewey Smith, for plaintiff in error.
The court did not err in overruling the general or the special demurrer to the petition as amended.
DECIDED FEBRUARY 6, 1957.
Lon Shadrick and Mrs. Lon Shadrick sued Jesse D. Hollinshed for damages allegedly resulting from conduct of the defendant described in the petition. The petition as finally amended alleged that the plaintiffs operated a modern and highly respected motel on U.S. Highway 41-E approximately one mile south of Acworth, Cobb County, Georgia; that on a certain day they were "descended upon" by six policemen led by the defendant who exhibited to them a search warrant signed by the defendant purportedly for the purpose of searching the premises for illegal whisky; that plaintiffs' living quarters were thoroughly searched and nothing illegal was found; that defendant and the other officers, who were unknown to plaintiffs but well known to the defendant, proceeded to awaken all the guests in the motel, to demand their drivers' licenses, and to insult said guests by demanding proof of the relationship which each had to the other sharing the same quarters; that the defendant did falsely and maliciously and without any reasonable or probable cause procure the issuance of said search warrant and under the authority therein granted he and other officers directed by him searched and ransacked their dwelling house and place of business and the rooms and apartments thereof, flung the furniture and contents thereof around, and thereby during a period of approximately one and one-half hours to two hours disturbed and disquieted plaintiffs and their guests; that the defendant had no reasonable or probable cause for making such complaint and causing the said warrant to be issued or executed; that the defendant, after the search made as aforesaid, did not further prosecute his said complaint, but deserted and abandoned same and the same complaint is now finally ended and determined; that as a direct and proximate result of the aforesaid fraudulent and malicious unwarranted raid and insulting remarks and thinly veiled innuendoes, one of the guests demanded and received $5.15 refund and checked out of the motel immediately. The petition prayed for damages in the sum of $25,000.
To the petition as amended, the defendant renewed his general demurrer and specially demurred to that part of the petition relating to the searching of the residences of other guests on the ground that the allegations were prejudicial. The court overruled the demurrers to the amended petition and the defendant excepted.
This case was transferred to this court by the Supreme Court. Hollinshed v. Shadrick, 212 Ga. 624 ( 94 S.E.2d 705). In the judgment transferring this case to this court, the Supreme Court ruled that no case in equity was made by the petition and that since the petition contained allegations appropriate only to the prayer for damages, it did not assume the character of an equitable action by virtue of the prayer for injunctive relief. We shall, therefore, confine our discussion to the legal questions involved.
The defendant in this case is charged with illegally executing a search warrant which he himself illegally procured. The petition set forth a cause of action both for trespass under Code § 27-301 and for malicious prosecution under Code § 105-801 and as there was no objection to the petition by demurrer that it included both actions, the petition is not subject to dismissal for this reason. The defendant contends that no cause of action is set forth for trespass for the reason that there was no breaking. Code § 27-301 is simply an attempted codification of the common law and the statement in this Code section that the breaking and search is a trespass does not mean that an illegal breaking and an illegal search are both required to constitute a trespass. Either an illegal breaking alone or an illegal search alone is enough to constitute a trespass. Code (Ann.) § 2-116, being the constitutional provision under reasonable searches and seizures, is also but an expression of common-law rights. Underwood v. State, 13 Ga. App. 206, 208 ( 78 S.E. 1103). The defendant also contends that the petition does not set forth a cause of action for malicious prosecution for the reason that the petition does not allege that the proceeding against the plaintiffs has not been finally terminated in their favor. Where a search warrant has been issued, the failure to find the illegal articles named in the warrant is satisfaction of the requirements that the action must be terminated favorably to the plaintiffs. 47 Am. Jur. 546, § 69, Searches and Seizures. Furthermore, the allegation that the proceeding had been abandoned by the defendant is a proper allegation of a successful termination thereof in favor of the plaintiffs. Id.
The foregoing answers all of the contentions of the defendant in the trial court on the questions raised by the general demurrer. The special demurrer to paragraph 5-A of the plaintiffs' amended petition is without merit because part of the cause of action is based on the illegal searching of the residences of other guests at the motel of the plaintiffs in the case, and the allegations are relevant and material to the cause of action as a whole.
The court did not err in overruling the general demurrer to the petition as amended or in overruling the special demurrer to paragraph 5-A of the petition as amended.
Judgment affirmed. Quillian and Nichols, JJ., concur.