Sears, Roebuck & Co. v. Alexander
| Decision Date | 17 February 1949 |
| Docket Number | 6 Div. 795. |
| Citation | 39 So.2d 570,252 Ala. 122 |
| Court | Alabama Supreme Court |
| Parties | SEARS, ROEBUCK & CO. v. ALEXANDER. |
Rehearing Denied March 31, 1949.
S M. Bronaugh, E. Grant Fitts and White, Bradley, Arant & All, all of Birmingham, for appellant.
John L. Busby and D. G. Ewing, both of Birmingham, for appellee.
Count 11 of the complaint is as follows:
Plaintiff claims of the defendants $100,000.00 as damages for that heretofore on to-wit: the 5th day of December, 1946, the defendants, maliciously and without probable cause therefor, caused plaintiff to be prosecuted by City of Birmingham, a municipal corporation in the recorder's court of Birmingham, at Birmingham, Alabama, and thereafter in the Circuit Court of the Tenth Judicial Circuit of Alabama, under a municipal ordinance of said City of Birmingham, a municipal corporation, on a charge of petit larceny, which charge, before the commencement of this action has been judicially investigated and said prosecution ended and the plaintiff discharged which said municipal ordinance appears as Section 843 of the General Code of said City of Birmingham, and is in words and figures as follows:
'Any person who steals any dog or who steals any personal property of the value of less than twenty-five dollars, except under circumstances constituting a felony under the state law of Alabama, shall be guilty of a misdemeanor.' The court or complaint under and on which the plaintiff was so prosecuted in said Circuit Court being in words and figures as follows:
'Petit Larceny
City of Birmingham, a municipal corporation
vs
Mrs. E. B. Alexander, Defendant.}
In The Circuit Court Of Jefferson County Alabama.
Appealed from Recorder's Court Of Birmingham, Alabama
Comes the City of Birmingham, Alabama, a municipal corporation and complains that Mrs. E. B. Alexander, within twelve months before the beginning of this prosecution and within the City of Birmingham, or the police jurisdiction of said City of Birmingham, Alabama, did feloniously take, steal and carry away to-wit: two picture prints of the value of to-wit: $2.98 a pair, the personal property of Sears, Roebuck & Company, a corporation, contrary to and in violation of Section 843 of the General Code of the City of Birmingham, Alabama.
Chas. H. Brown,
Attorney for City of Birmingham.'
And the plaintiff alleges that as a proximate consequence of the defendant's maliciously and without probable cause therefor, having caused the plaintiff to be so prosecuted, as aforesaid, the plaintiff suffered and sustained injuries and damages, etc.
There is only one question presented by this appeal, raised by demurrer to count 11. That is, whether there can be maintained a civil action in case for causing the malicious prosecution of plaintiff in the recorder's court for the violation of a city ordinance without alleging that plaintiff was arrested on the charge.
Defendant may cause plaintiff to be maliciously prosecuted in the recorder's court for the violation of a city ordinance, either by causing a warrant to issue and her arrest on it, or by causing notice to be given her to appear before the recorder at a certain time and place to answer the charge specified, if she does so and makes no demand for a formal charge or other objection to the procedure. McKinstry v. Tuscaloosa, 172 Ala. 344, 54 So. 629.
We have a line of cases which lay down the rule that a suit for malicious prosecution of a criminal charge contemplates a lawful arrest and is in case, whereas one of false imprisonment contemplates an unlawful arrest and is in trespass. The cases were in the main distinguishing the two forms of action. In both it is assumed that an arrest is essential. Davis v. Sanders, 133 Ala. 275, 32 So. 499; Sanders v. Davis, 153 Ala. 375, 44 So. 979; Rich v. McInerny, 103 Ala. 345, 15 So. 663, 49 Am.St.Rep. 32; Reach v. Quinn, 159 Ala. 340, 48 So. 540; Strain v. Irwin, 195 Ala. 414, 70 So. 734; Birmingham Bottling Works v. Morris, 193 Ala. 627, 69 So. 85; Bryant v. Hartford Fire Ins. Co., 230 Ala. 80, 159 So. 685.
The Court in all the cases is dealing with a prosecution which is always begun by process leading to an arrest, actual or constructive.
But this Court is committed to the proposition that there may be such a suit for the malicious prosecution of a civil suit, although there has been no attachment of the person nor seizure of property. Peerson v. Ashcraft Cotton Mills, 201 Ala. 348, 78 So. 204, 208, L.R.A.1918D, 540; Turner v. J. Blach & Sons, 242 Ala. 127, 5 So.2d 93.
The only way we know to reconcile those cases is upon the theory that when a wrong is committed, there is a remedy whether there is an arrest or not: that the arrest in a criminal case is an incident of its prosecution, but not so in a civil case.
It may be that if one is cited to appear in the...
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...which the plaintiff's interests have been invaded," note 11 declares, "The distinction is well stated in Sears, Roebuck Co. v. Alexander, 1949, 252 Ala. 122, 39 So.2d 570." 4 Alabama apparently holds that the legal process need not be letter perfect if the papers are a "colorable" charge of......
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