Lacey v. Hendricks

• Decision Date: 13 January 1910
• Citation: 164 Ala. 280,51 So. 157
• Parties: LACEY ET AL. v. HENDRICKS.
• Court: Alabama Supreme Court

51 So. 157

164 Ala. 280

LACEY ET AL. v. HENDRICKS.

Supreme Court of Alabama

January 13, 1910

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action for malicious prosecution and false imprisonment by William Hendricks against C. M. Lacey and another. Plaintiff had judgment, and defendants appeal. Reversed.

The complaint was as follows (omitting the first four counts) (5) "Plaintiff claims of the defendant $1,000 damages for that C. M. Lacey, while a justice of the peace in and for precinct 9, in Jefferson county, Alabama, did under cover of his said office unlawfully cause plaintiff to be arrested and imprisoned, against the will of plaintiff, for two days, to wit, on the 14th and 15th of October, 1907, on the charge of assault and battery. And plaintiff avers that at the time said C. M. Lacey procured plaintiff's arrest as aforesaid the said C. M. Lacey was qualified as such justice of the peace, and that the said C. M. Lacey as principal and the United States Fidelity & Guaranty Company as surety had prior to said time made and entered into an obligation payable to the state of Alabama in the sum of $1,000, which said bond or obligation is in words and figures as follows: [Here follows the usual justice of the peace bond.] And plaintiff avers that at the time said C. M. Lacey procured plaintiff's said arrest and imprisonment the said bond was in full force and effect. Plaintiff avers that the arrest and imprisonment of defendant was procured by the said C. M. Lacey without probable cause therefor, and was wrongfully and maliciously done." (6) "Plaintiff claims of defendant $1,000 damages, for that C. M. Lacey as principal, and the United States Fidelity & Guaranty Company as surety, did on the 3d day of January, 1907, make and enter into an obligation or bond payable to the state of Alabama in the sum of $1,000 which bond or obligation is in words and figures as follows [Here follows copy of the usual justice of the peace bond.] And plaintiff avers that while the said C. M. Lacey was qualified as such justice of the peace that he, acting under the color of his office, unlawfully caused plaintiff to be arrested and imprisoned, against plaintiff's will, on a charge of assault and battery for two days, to wit, on the 14th and 15th of October, 1907. Plaintiff avers that the said arrest and imprisonment was caused by the said C. M. Lacey maliciously and wrongfully, and without probable cause therefor." (7) Same as 6, down to and including the words "against plaintiff's will," where they occur therein together, and adds the following: "By issuing an order of such justice of the peace which is in words and figures as follows: [Here follows mittimus to jailer of Jefferson county, directing him to receive William Hendricks into his custody and retain him until he is legally discharged under an order for the payment of the fine and hard labor for the costs, for the county for 60 days. This mittimus was dated October 7, 1907.] And by reason of such order the said C. M. Lacey caused the plaintiff to be arrested and imprisoned for two days, to wit, the 14th and 15th days of October, 1907." (8) Same as 6, down to and including the words "against plaintiff's will," and adds the following: "On the charge of having failed to pay the fine of $10 assessed against plaintiff by the said C. M. Lacey in a former trial for assault and battery in the court of the said C. M. Lacey, from which verdict of the said Lacey plaintiff having appealed to the criminal court of Jefferson county, Alabama, by reason of such order from the said C. M. Lacey, plaintiff was arrested and imprisoned for two days, to wit, October 14th and 15th." (9) Same as the sixth count, down to and including the words "acting under color of his office," and adds the following "Violated the condition of the said bonds or conditions by unlawfully causing plaintiff to be arrested and imprisoned, against plaintiff's will, on the charge of assault and battery, for two days, the 14th and 15th days of October, 1907." (10) Same as sixth count, down to and including the words "acting under color of his office," and adds the following: "Violated the condition of said bond or obligation and breached the condition of the same by causing the plaintiff to be arrested and imprisoned, against plaintiff's will, on a charge of assault and battery, for two days, to wit, the 14th and 15th days of October, 1907. And plaintiff avers that by reason of said arrest and imprisonment he was put to great expense in hiring attorneys and for legal service for the purpose of getting plaintiff discharged from such imprisonment, and it was necessary to take out habeas corpus proceedings for the purpose of discharging plaintiff, and plaintiff lost much time from his daily employment by reason of said imprisonment."

The demurrers to the fifth count were as follows: "That at the time said plaintiff was arrested and imprisoned the said Lacey was a judicial officer, and was acting in his judicial capacity at the time said plaintiff was arrested and imprisoned. It is not averred in said count wherein any of the conditions of the bond made by the defendant and his sureties have been breached, nor that the said C. M. Lacey has failed to faithfully discharge the duties of his office." To the sixth count, same as to the fifth. To the seventh, same as to the fifth, with this additional demurrer: "That the mittimus as set out in the seventh count shows that the said Lacey was acting in his judicial capacity at...