Gaines v. Harmon
| Decision Date | 18 January 1945 |
| Docket Number | 4 Div. 338. |
| Citation | 246 Ala. 307,20 So.2d 503 |
| Parties | GAINES v. HARMON, Court Register, et al. |
| Court | Alabama Supreme Court |
E. C. Boswell, of Geneva, for appellant.
J N. Mullins and O. S. Lewis, both of Dothan, for appellees.
Plaintiff (appellant here) seeks to recover of the Register of the Circuit Court of Houston County, and the surety upon her official bond, damages which he claims to have suffered as a proximate result of malfeasance in office on the part of said register. Demurrers of the defendants were sustained to the original complaint, as well as to the complaint several times amended, with numerous grounds assigned. Thereupon, the plaintiff amended his complaint by substituting Counts A and B. To the substituted complaint defendants interposed demurrer, and assigned to each count thereof separately and severally, all the grounds of demurrer theretofore 'filed to the complaints of plaintiff in said case as of dates May 19, 1942, August 5, 1942, October 20 1942, October 23, 1942, on file in this Court.' The defendant surety interposed for itself additional grounds of demurrer.
The cause coming on to be heard upon the demurrers to the substituted complaint, the said demurrers were sustained. Thereupon, pursuant to Sec. 819, Title 7, Code 1940 plaintiff, because of the adverse ruling of the court in sustaining the demurrers of the defendants, took a nonsuit and appealed. In the motion for a nonsuit the plaintiff makes acknowledgment of the ruling of the court in sustaining the demurrers, and duly reserved an exception thereto.
But upon this appeal the argument is advanced that in fact no demurrers were interposed to the substituted complaint, based, we assume, upon the contention that the adoption by counsel, in seeking to interpose demurrers to the substituted complaint, of the demurrers theretofore filed on four separate dates was insufficient and to be ignored. These demurrers, with numerous stated grounds, were on file and readily to be ascertained. There was no objection made to this procedural matter. Indeed, we think the record clearly indicates that the plaintiff acquiesced therein and recognized that the demurrers had been properly considered by the court. In any event, in the absence of objection to this method of procedure, the demurrer is due to be so considered here. Louisville & N. R. Co. v. Hall, 131 Ala. 161, 32 So. 603.
Following plaintiff's motion for nonsuit on account of the adverse ruling of the court in sustaining the demurrer, a formal judgment was entered granting the motion and taxing plaintiff with the costs. From this final judgment the appeal is prosecuted. Coming to the merits of the case, it appears that the plaintiff, in Counts A and B--which are practically the same--complains of the register in two particulars. These counts disclose that plaintiff was called as a witness in a certain cause then pending on the equity docket in said circuit court, and that he made certain statements and answered certain questions propounded to him by the attorneys for the parties in the cause; that a short time thereafter the register, in her official capacity as such, dated back and issued a commission to one Linton C. Warren to take the deposition of plaintiff in said cause. And in the next particular plaintiff complained that the register presented, or caused to be presented, or allowed to be presented, the said commission to the grand jury, whereupon he was indicted for the crime of perjury and subsequently prosecuted therefor.
There are general averments by way of conclusion of the pleader that the acts charged to the register were unlawfully and maliciously, or, as stated in Count B, 'wickedly' done. But the pleader purports to set out the facts, and the sufficiency of the complaint must be determined thereby rather than broad conclusions. And the complaint is also to be interpreted in the light of the well-known principle that public officers are presumed to do their duty and act in good faith (9 Ala.Dig., Evidence, k83(1), p. 78); and the further well-recognized principle that fraud is never presumed, but the facts on which the charge is based should be clearly stated. Steele v. Louisville & N. R. Co., 245 Ala. 113, 16 So.2d 416.
As to the presentation of the commission to the grand jury, it is proper, of course, to consider the weakest alternative in the complaint, which is to the effect that the register allowed this commission to be presented to the grand jury. For aught appearing,...
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