Allen v. Bannister

• Decision Date: 01 November 1923
• Docket Number: 7 Div. 424.
• Citation: 210 Ala. 264,97 So. 820
• Parties: ALLEN v. BANNISTER.
• Court: Alabama Supreme Court

97 So. 820

210 Ala. 264

ALLEN v. BANNISTER.

7 Div. 424.

Supreme Court of Alabama

November 1, 1923

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Action by J. H. Bannister against M. M. Allen. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449,§ 6. Affirmed.

Culli &amp Hunt, of Gadsden, for appellant.

J. M Miller, of Gadsden, for appellee.

SAYRE J.

Bannister sued Allen in three counts, all in Code form, viz. assault and battery, false imprisonment, and malicious prosecution and recovered judgment in the sum of $1,000.

Defendant moved for a continuance and then asked to be allowed to make a showing for two absent witnesses. Exceptions were reserved to the court's adverse rulings in both instances. Stating the reason for its refusal to wait for a showing, the court observed that the cause had been set for trial on Tuesday of the then current week, and was called for trial on Thursday; that defendant had been in attendance upon the court since Tuesday; and, in effect, that the showing should have been ready. In these rulings we find no abuse of the court's discretion, and hence no cause for a reversal. McLaughlin v. Beyers, 175 Ala. 545, 57 So. 716.

Count 3 of the complaint alleged damages in no amount; that is, it claimed of the "defendants for maliciously, and without probable cause therefor, causing the plaintiff to be arrested under a warrant," etc., without any allegation of what it claimed. As to this count the court refused the general affirmative charge requested by defendant. The argument for error on this assignment is that the count fails to state a cause of action. The judgment of the court is that the count alleged enough to justify the assessment of nominal damages, and, therefore, that reversible error cannot be predicated of the action of the court in refusing the charge.

This litigation had its origin in a personal difficulty between plaintiff and defendant. In his oral charge the court said to the jury: "It is without dispute in the evidence that defendant did institute a prosecution the next day after this man [plaintiff] had been put in jail. It is also without dispute in the evidence that the prosecution has been investigated, the prosecution ended, and this plaintiff discharged."

To these statements defendant duly excepted. The evidence in support of the facts stated by the court was clear, direct and without dispute. In these...