Chambliss v. Blau
| Decision Date | 14 June 1900 |
| Citation | 28 So. 602,127 Ala. 86 |
| Parties | CHAMBLISS v. BLAU. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Jefferson county; A. O. Coleman, Judge.
Action by N.M. Chambliss against Peter Blau for damages for malicious prosecution. From a judgment for defendant plaintiff appeals. Affirmed.
The complaint was originally filed contained three counts. The plaintiff withdrew the third count, and added a fourth count and the cause was tried upon the plea of the general issue to each of the counts. Said counts were as follows: "(1) Plaintiff claims of the defendant one thousand dollars damages for maliciously, and without probable cause therefor causing the plaintiff to be arrested and imprisoned, on a charge of larceny of fodder, for the period of one hour, on or about the 1st day of April, 1898.
"(2) The plaintiff claims of the defendant and further sum of one thousand dollars damages for maliciously, and without probable cause therefor, causing the plaintiff to be arrested under a warrant by one J. D. Payne, a justice of the peace on the 1st day of April, 1898, on a charge of larceny, which charge before the commencement of this action had been judicially investigated and said prosecution ended and the plaintiff discharged."
The alleged wrong complained of by the plaintiff was that he was arrested under a warrant charging him with larceny, which warrant recited that the charge of larceny was preferred by the defendant in the person of said Peter Blau. It was shown that upon the trial before the justice of the peace who issued the warrant, the defendant was discharged. The other facts of the case are sufficiently stated in the opinion.
The court, at the request of the defendant, gave the general affirmative charge in his behalf, to the giving of which charge the plaintiff duly excepted. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the giving of the general affirmative charge requested by the defendant.
J. W. Bush, for appellant.
Bowman & Harsh, for appellee.
1. The undisputed evidence shows that defendant, when he went before the magistrate to make complaint, did not charge plaintiff with larceny. He merely stated to that officer, that plaintiff had gone on his place and taken away a lot of his fodder, without his consent, claiming that he had bought it from John Phillips, a tenant on the place, who had gone away without paying his rent, and he, defendant, wanted to get damages for it. The affidavit he made did not charge larceny but, if anything, a trespass,-its language being, that "within twelve months before making this affidavit, in said county, N.M. Chambliss did enter his premises and carried away a lot of fodder of the value of five dollars," etc. It is true the justice issued a warrant of arrest of plaintiff for larceny on this complaint of defendant; but the justice testified that he made out the warrant after defendant left. There is no evidence that defendant ever saw the warrant, or that he ever made an affidavit for the issuance of a warrant for larceny. The magistrate as appears, committed a mistake and transcended his authority in issuing such a warrant on the information given him and the affidavit made by defendant. There can, therefore, be no recovery against defendant on account of such a mistake made by the magistrate in issuing a warrant against plaintiff for larceny. This disposes of counts 1 and 2 of the complaint....
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