Engle v. Patterson

• Decision Date: 12 April 1910
• Citation: 52 So. 397,167 Ala. 117
• Parties: ENGLE v. PATTERSON ET AL.
• Court: Alabama Supreme Court

52 So. 397

167 Ala. 117

ENGLE v. PATTERSON ET AL.

Supreme Court of Alabama

April 12, 1910

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by J. M. Engle against M. F. Patterson and others for false imprisonment and malicious prosecution. Judgment for defendants, and plaintiff appeals. Affirmed.

A good many rulings are invoked on the pleadings; but they are not necessary to be here set out, in view of what is said in the opinion. It appears that, after the trial was entered upon the plaintiff stated that, the action being for false imprisonment, under the rulings of the court it was necessary for them to procure a certain void affidavit and warrant upon which the plaintiff was arrested at the instance of the defendant, and that these papers were issued by T. L Simpson, a certain justice of the peace, and that they had ordered a subp na duces tecum issued to said Simpson, requiring him to produce his docket, and also the affidavit and warrant, but that for some reason the justice had neither the docket nor the paper with him, and hence they desired the case postponed until the papers could be obtained. The court declined to grant the request, and required the plaintiff to go to trial, whereupon they attempted in various ways to show the contents of the affidavit and warrant, and of the trial had upon said affidavit and warrant. No effort seems to have been made to show, by Simpson or any one else, that the warrant and affidavit had been lost and destroyed. The court declined to permit proof of the papers or of the docket, and as a consequence plaintiff took a nonsuit, with bill of exceptions.

John R. Sample and Wert & Lynne, for appellant.

Callahan & Harris, for appellees.

ANDERSON J.

In the absence of a statutory provision authorizing it, a writ of error, or appeal, would not lie from a voluntary nonsuit, or a nonsuit taken by the plaintiff in consequence of adverse rulings of the court. Rogers v. Jones, 51 Ala. 354. The statute, however, which has existed for many years originally authorized the review of a ruling when the plaintiff suffered a nonsuit in consequence thereof, when the fact, point, or decision was reserved by bill of exceptions. This court, in construing this statute, has repeatedly held that it related exclusively to rulings of the court which could only be properly introduced into the record by bill of exceptions, and that the rulings of the court upon the pleadings were not within the purview of the statute. Prichard v. Sweeney, 109 Ala. 653, 19 So. 730. The statute was amended by the act of 1903, and now appears as section 3017 of the Code of 1907, and which is as follows: "If, from any ruling or decision of the court on the trial of a cause, either upon pleadings, admission or rejection of evidence, or upon charges to the jury, it may become necessary for the plaintiff to suffer a nonsuit, the facts, point, ruling, or decision may be reserved for the decision of the Supreme Court by bill of exceptions or by appeal on the record as in other cases." While the statute as amended extends the right to review on appeal from a nonsuit, to pleadings as well as points that should properly be introduced by bill of exceptions, it was not the intent or policy...