Ladd v. Townsell

• Decision Date: 12 April 1955
• Docket Number: 7 Div. 340
• Citation: 79 So.2d 709,38 Ala.App. 181
• Parties: Raymond LADD v. Anderson TOWNSELL.
• Court: Alabama Court of Appeals

Page 709

79 So.2d 709

38 Ala.App. 181

Raymond LADD v. Anderson TOWNSELL.

7 Div. 340.

Court of Appeals of Alabama.

April 12, 1955.

W. M. Beck, Fort Payne, for appellant.

Scott, Dawson & Scott, Fort Payne, for appellee.

HARWOOD, Judge.

Plaintiff below sought damages for an alleged malicious criminal prosecution by the defendant.

Count A of the complaint, which will hereinafter be set out, was the only count submitted to the jury.

The defendant's demurrers to the complaint being overruled, he filed pleas of the general issue, and a special plea of set off claiming $200 damages resulting from defendant's having paid a note in that amount as surety for the plaintiff on said note.

In this state of the pleadings issue was joined.

In the trial below the court gave the general affirmative charge in favor of the defendant as to his plea of set off.

The jury returned a verdict in favor of the plaintiff, assessing his damages at $75, seventy-five dollars, and judgment was entered accordingly.

Count A reads as follows:

'The Plaintiff claims of the Defendant $2,000.00 damages for maliciously and without probable cause therefor, causing the Plaintiff to be arrested under a warrant issued by A. L. Campbell, Clerk of the Circuit Court of DeKalb County, Alabama, and ex officio Clerk of the DeKalb County Court on December 31, 1951, on a charge of disposing of property fraudulently and for the purpose of defrauding the owner of a lien thereon, which said offense was a felony and upon said affidavit and in said prosecution and as a result of the making of said complaint, the Plaintiff was indicted by the grand jury of DeKalb County, Alabama, for disposing of said property for the purpose of defrauding a lien holder thereof and which said prosecution and said charge, before the commencement of this action has been judicially investigated by the Circuit Court of DeKalb County, Alabama and the said prosecution ended and the Plaintiff discharged. And the Plaintiff avers that the prosecution hereinabove set out was for a felony and was commenced in the DeKalb County Court and being a felony, had to be investigated and the Defendant had to be discharged from the Circuit Court of DeKalb County, Alabama, said DeKalb County Court not having jurisdiction of felonies.'

Among the grounds of the demurrer filed to Count A are the following:

'2. Except as a conclusion of the pleader, no causal connection is shown between the prosecution in the DeKalb County Court and the Circuit Court.

'3. For that no connection is shown between the prosecution in the DeKalb County Court and the Circuit Court.'

It is our conclusion that the demurrer was well taken, and the court erred in overruling it.

As stated in Turner v. J. Blach & Sons, 242 Ala. 127, 5 So.2d 93, to authorize the maintenance of a suit for malicious prosecution the following elements must be shown: (1) the institution or continuation of original judicial proceedings, either civil or criminal; (2) by or at the instance of the defendant; (3) the termination of such proceedings in plaintiff's favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding; and (6) the suffering of injury or damage.

Further, instituting a criminal prosecution maliciously and without probable cause, leading in due course to the arrest, is the essence of the wrong. Bryant v. Hartford Fire Ins. Co., 230 Ala. 80, 159 So. 685.

Count A, supra, fails entirely to aver that the defendant caused the plaintiff to be indicted. Actually, so far as can be determined from...