Kemp v. York
| Decision Date | 12 November 1918 |
| Docket Number | 1 Div. 267 |
| Citation | 81 So. 195,16 Ala.App. 675 |
| Parties | KEMP v. YORK. |
| Court | Alabama Court of Appeals |
On Rehearing, December 17, 1918
On Rehearing.
Appeal from Circuit Court, Mobile County; C.A. Grayson, Judge.
Action by Mrs. A.E. York against W.H. Kemp for damages for malicious prosecution. Judgment for plaintiff, and defendant appeals. Affirmed.
Certiorari denied 80 So. 809.
Harry T. Smith & Caffey, of Mobile, for appellant.
Joseph N. McAleer and J.H. Kirkpatrick, both of Mobile, for appellee.
On appeal from the inferior criminal court of Mobile to the circuit court, the trial is de novo on the merits, without regard to the judgment of the inferior court. Alford v State ex rel. Attorney General, 170 Ala. 220, 54 So 213, Ann.Cas.1912C, 1093; Code 1907, §§ 6725, 6723. Such appeal vacates the judgment of the inferior court and destroys its effect as an estoppel. 3 Brickell's Dig 591, § 42; Freeman on Judgments, § 328; Abraham v Alford, 64 Ala. 281; Harsh v. Heflin, 76 Ala. 499; Cofer v. Reinschmidt, 121 Ala. 252, 25 So. 769.
The averments of the plea, when construed in connection with the averments of the complaint, were affected with such uncertainty as to render it subject to the demurrers, which were properly sustained. If the judgment of the inferior court was admissible at all, it was only prima facie evidence of the existence of probable cause, and the plaintiff was not precluded by this judgment from showing a want of probable cause, by other competent evidence. Ewing v. Sanford, 19 Ala. 605; Hanchey v. Brunson, 175 Ala. 236, 56 So. 971, Ann.Cas.1914C, 804.
The evidence on the issue presented by the defendant's other special plea was in conflict, and the defendant was not entitled to the affirmative charge.
There is no reversible error in the record.
Affirmed.
On Rehearing.
The defendant's second plea can be sustained on no other theory than that the judgment of conviction in the inferior court operates as an estoppel against plaintiff to controvert the existence of probable cause--in other words, the judgment is res adjudicata as to the existence of probable cause--and, if sustained, is a complete defense to this action. There are two elements essential to the application of the doctrine of estoppel by judgment absent in this case: The parties in the two cases are not the same. Holland v. Fairbanks, Morse & Co., 166 Ala. 198, 51 So. 931; Richter v. Koster, 45 Ind. 440; 4 Mayf.Dig. p. 728, par. 124, and the judgment has been annulled and its efficacy as an estoppel has been destroyed by the appeal therefrom. See authorities cited in paragraph 1 of the original opinion; also, Mayf.Dig. supra. In principle, there is no reason for saying that a judgment of conviction which has thus been annulled is res adjudicata as to one of the issues involved in that trial, and not as to all others, and there is no reason for saying that a judgment of conviction which has been subsequently annulled shall operate as an estoppel on the question of the existence of probable cause, and that the judgment of a committing magistrate invested with complete jurisdiction to determine the question is not. On the inquiry as to the guilt or innocence of the party accused on the final trial, the existence of probable cause is not a specific issue in the case, and is only involved to the extent that the greater includes the less, while in the preliminary inquiry before a committing magistrate the question of the existence of probable cause is the sole and determining issue in the case. The integrity of the courts in either case and the right of the prosecutor are fully protected by the rule which accords to such a judgment the evidentiary force of establishing prima facie the existence of probable cause.
While we are aware that there is great conflict of opinion on the subject as to whether such a judgment is good as an estoppel and that probably the numerical weight of authority sustains the view that it is, we think the best considered cases and sound reason sustain the rule that such a judgment is only prima facie evidence of the existence of probable cause, and that it may be rebutted by any competent evidence tending to show the absence of probable cause. Sandlin v. Anders, ...
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Nesmith v. Alford
...Am.Jur., Malicious Prosecution, § 71, page 747, citing the Alabama cases of Stewart v. Blair, 171 Ala. 147, 54 So. 506, and Kemp v. York, 16 Ala.App. 675, 81 So. 195, certiorari denied by Supreme Court of Alabama, 202 Ala. 425, 80 So. 16 "When constabulary duty's to be done The policeman's ......
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... ... inferior courts which is substantially the same as ... Mississippi Code of 1930, Section 68. In Kemp v ... York (Ala. 1918), 81 So. 195, the court of appeals held ... that, in view of the statute requiring a trial de novo on the ... merits, a ... ...
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Boothby Realty Co. v. Haygood, 6 Div. 402
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