The court properly sustained the demurrers to counts 1 and 2 of the petition, but erred in sustaining the demurrer to count 3.
The count for malicious prosecution merely charges that the defendants instructed the policemen to arrest the plaintiff. It does not appear that the defendants swore out any warrant or took any action or proceeding before a judicial officer, nor does it appear that the facts stated by the defendants to the policemen and on which they directed the officers to arrest the plaintiff constituted any crime against any State law or any pleaded ordinance of the city. See Cary v. Highland Bakery Inc.,50 Ga. App. 553 (179 S.E. 197). The court will not take judicial notice of a municipal ordinance that is not pleaded. Under the law of this State, an arrest under a warrant which does not charge a violation of a penal statute will not support an action for malicious prosecution. Collum v. Turner, 102 Ga. 534 (27 S.E. 680); Alexander v. West, 6 Ga. App. 72 (64 S.E. 288); Pye v. Gillis, 9 Ga. App. 397 (71 S.E. 594). InSatilla Mfg. Co. v. Cason, 98 Ga. 14 (2) (25 S.E. 909, 58 Am. St. Rep. 287), the court said: "In order to be the basis of an action for a malicious prosecution, the proceeding complained of must at least bear some resemblance to a process authorized by law, under which the person or property of the defendant therein might be lawfully arrested or seized. Accordingly, where an affidavit was made and a warrant for the arrest of another was issued thereon, and it affirmatively appeared on the face of both the affidavit and the warrant, not only that no offense whatever against the criminal laws of this State was charged, but also that no substantive element of any criminal offense was stated, such warrant was *Page 639 absolutely void, and an arrest upon it, while constituting false imprisonment, would not authorize the bringing of an action for a malicious prosecution." No ordinance of the City of Atlanta was pleaded. Conceding, but not deciding, that a prosecution may be begun as here alleged, the facts alleged in counts 1 and 2 would not serve as the basis of a valid prosecution if incorporated in a warrant or other proceeding. Under the decisions above quoted, the court properly sustained the demurrers to these counts. Count 2, being an action for malicious arrest, was, under the principles stated in Waters v. Winn, 142 Ga. 138 (82 S.E. 537, L.R.A. 1915A, 601, Ann. Cas. 1915D, 1248), subject to the same demurrer.
Count 3 was a proceeding for false imprisonment, under the Code, § 105-901. It charged that the defendants, without swearing out any warrant or taking any other proceeding, procured, directed, and instructed certain police officers to arrest and detain the plaintiff; that he was not then nor had he been violating any law, State or municipal, nor was he attempting to escape; that after his arrest by the policemen he was taken into custody and restrained of his liberty; and that he was afterwards charged with illegal parking, but was acquitted after a trial. Such allegations set out a cause of action. "To arrest one illegally and detain him for any length of time is a criminal offense. . . It is likewise a tort for which an action for damages will lie. . . If the imprisonment be the act of several persons, they may be sued jointly or severally. . . In this State an arrest for a misdemeanor, without a warrant, is illegal, unless the crime was committed in the presence of the officer, or the offender is endeavoring to escape, or, for some other reason, there is likely to be a failure of justice." Holliday v.Coleman, 12 Ga. App. 779, 780 (78 S.E. 482). See alsoDuckett v. Ozmer, 48 Ga. App. 41 (172 S.E. 118); Ducros v. Peoples Drug Store, 21 Ga. App. 634 (94 S.E. 897). The court erred in sustaining the demurrer to count 3 of the petition.
Judgment affirmed in part and reversed in part. Broyles, C.J. and MacIntyre, J., concur. *Page 640