Deason v. Gray

• Decision Date: 07 November 1914
• Docket Number: 778
• Citation: 66 So. 646,189 Ala. 672
• Parties: DEASON v. GRAY, Sheriff, et al.
• Court: Alabama Supreme Court

66 So. 646

189 Ala. 672

DEASON v. GRAY, Sheriff, et al.

No. 778

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action for false imprisonment by S.G. Deason against John M. Gray as Sheriff, and another, on his official bond. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

The complaint contained a number of counts, most of which were in Code form, and the facts of which sufficiently appear from the opinion. The judgment was rendered March 18, 1913, and the bill of exceptions is indorsed as having been tendered to the trial judge on June 17, 1913, 91 days after judgment rendered. Each count of the complaint alleges that the United States Fidelity & Guaranty Company is surety on the official bond of said John M. Gray, as sheriff of Walker county, Ala and each count alleges either that the arrest was made by the sheriff, or by a named deputy of the sheriff, without probable cause, and without a warrant therefor, on the charge of using abusive language.

F.A Gamble, of Jasper, for appellant.

Ray &amp Cooner, of Jasper, for appellees.

MAYFIELD J.

The bill of exceptions in this case must be-stricken on appellees' motion, because not signed within the time required by law. Code, § 3019. The case must be reversed, however, because of rulings on the pleadings adverse to appellant--the sustaining of demurrers to several counts of the complaint.

It is difficult to understand upon what theory the trial court acted in sustaining demurrers to any one of the counts. They each substantially followed the Code form (Code 1907, vol. 2, p. 1198, form 19) for false imprisonment. The statute not only declares this form sufficient, but we have always held sufficient pleadings which substantially follow these forms. Some of these counts may be insufficient in some respects, but such defects were not pointed out by the demurrers, and we can consider only such as are specially assigned. Code, § 5340. The only theory upon which the rulings of the trial court could be justified would be that the court treated the complaint and each count thereof as attempting to state a cause of action for malicious prosecution. The counts would be, of course, subject to some of the grounds of demurrer interposed, if they sought a recovery for malicious prosecution; but they were not subject to such grounds as for false imprisonment. Some of the counts contained averments appropriate to counts for malicious prosecution, but which were unnecessary in counts for false imprisonment; but no demurrer or motion was interposed which went to this defect. Each count stated a cause of action, at least for nominal damages, as for false imprisonment, against both the sheriff and his official bondsmen. It was not necessary to set out the bond, nor any of its conditions. The statutes prescribe these; and if the official bond was not such as the statutes prescribe, or if the defendant was not really surety on the sheriff's bond, this was matter for special plea. The action was against the sheriff and the guaranty company, and it was alleged in each count that the guaranty company was surety on the official bond of the sheriff. The law says what the conditions are, and for what acts or faults or derelictions of the sheriff the surety on his official bond shall be liable. Hence these were questions of law, and not of fact, and were not necessary to be alleged.

For the same reason, most, if not all, of the counts alleged that the unlawful arrest and imprisonment charged was had and done by a named deputy of the sheriff. The law makes the sheriff liable for certain official acts of the deputy, and for certain acts done under color of office of within the line and scope of the...