Lane v. Alabama Penny Savings Bank

• Decision Date: 12 February 1914
• Citation: 185 Ala. 656,64 So. 608
• Parties: LANE v. ALABAMA PENNY SAVINGS BANK et al.
• Court: Alabama Supreme Court

64 So. 608

185 Ala. 656

LANE v. ALABAMA PENNY SAVINGS BANK et al.

Supreme Court of Alabama

February 12, 1914

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by W.H. Lane against the Alabama Penny Savings Bank and another for damages growing out of an attachment proceeding. From a judgment sustaining demurrers to the complaint plaintiff appeals. Affirmed.

The following are the counts of the complaint: (3) Plaintiff claims of defendant the sum of $3,000 damages, for that on to wit, the 14th day of November, 1910, the servant, agent or employé of defendants, while acting within the line or scope of his employment, falsely made an affidavit, in substance, that this plaintiff was indebted to the National Realty Company, and that this plaintiff was a nonresident of the state of Alabama, and caused or procured a writ of attachment to be issued thereon out of the circuit court of Jefferson county, Ala., and, as a proximate consequence thereof, plaintiff avers that a great quantity of household goods was taken from him, he was deprived of the use of same for a long time, the same were wholly lost to him, and he was caused to lose much time, and was put to great trouble expense, and inconvenience in and about his efforts to recover the said goods, all to his damage, etc., as aforesaid. (4) Exactly similar to 3, except the words "and fraudulently" are inserted between the words "falsely" and "made" where they first occur therein. (5) Similar to 4, except that it is alleged that plaintiff was not a nonresident of the state of Alabama.

Horace C. Wilkinson, of Birmingham, for appellant.

R.L. Williams, of Birmingham, for appellees.

McCLELLAN J.

The only questions presented are the propriety of the court's action in sustaining demurrers to counts 3, 4, and 5 of the amended complaint. The best of these counts avers, at most, the wrongful causing or procuring the issuance of a writ of attachment against plaintiff's property as the result of a false and fraudulent affidavit, and the allegation of damage in consequence. This action is not on the attachment bond.

In order to sufficiently assert an action on the case for a wrong inflicted by recourse to legal process of the character described in the complaint, these conditions must be averred to have concurred to cause the damage claimed, viz., malice and want of probable cause. Brown v. Master, 104 Ala. 464, 16 So. 443; Tucker v. Adams...