McCall v. Alexander
| Decision Date | 08 November 1909 |
| Citation | 65 S.E. 1021,84 S.C. 187 |
| Parties | McCALL v. ALEXANDER. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Oconee County; J. W. De Vore, Judge.
Action by C. M. McCall against T. E. Alexander. Judgment for plaintiff, and defendant appeals. Affirmed.
See also, 81 S.C. 131, 61 S.E. 1106.
R. T Jaynes, for appellant. J. R. Earle and Stribling & Herndon for respondent.
In this action for malicious prosecution there was a verdict and judgment in favor of the plaintiff for $500, from which the defendant has appealed.
The prosecution alleged to be malicious was the procuring of a warrant for disposing of a bale of cotton without depositing the money in the clerk's office, as required by statute on which cotton the defendant claimed to have a lien for rent. The defendant was arrested and gave a recognizance for his appearance at a preliminary examination. The preliminary resulted in his discharge. The defendant on the trial of this action offered the testimony taken by the magistrate on the preliminary hearing, as direct evidence tending to show probable cause, but the record of the testimony was ruled out. The evidence taken in one trial is not admissible in another, unless the witness whose evidence is offered is dead, or insane, or beyond the seas, or the court is satisfied that the witness has been kept away by the contrivance of the opposite party. Wells v. Drayton, 1 Nott. & McC. 411, 9 Am. Dec. 718; Petrie v. Railroad Co., 29 S.C. 317, 7 S.E. 515. As we understand, the defendant admits this general principle, but contends that the court could not exclude the evidence taken before the magistrate, since it was set out in the complaint. It has, however, been decided that, while the parties cannot complain of the admission of evidence in support of irrelevant or redundant matter left in a pleading, yet the court is quite at liberty to exclude it. Martin v. Railway Co., 70 S.C. 8, 48 S.E. 616.
The record affords no ground for the court to reverse the judgment on the ground that the circuit court refused a new trial. The position that the verdict was without support in the evidence is untenable, for there was much evidence on both sides. The circuit judge charged the jury: "If you find there was no probable cause, then the jury would be at liberty to infer malice from want of probable cause." It has been held in many cases that this is a correct proposit...
To continue reading
Request your trial
-
State v. Steadman
... ... contrivance of the opposite party. State v. Rogers, ... 101 S.C. 280, 85 S.E. 636; McCall v. Alexander, 84 ... S.C. 187, 65 S.E. 1021 ... None of the ... foregoing cases, however, presented the exact question which ... ...
-
Brown v. Bailey
... ... Upon this question the authorities are divided. 34 Am.Jur., ... page 779, 54 C.J.S., Malicious Prosecution, § 89(f), page ... 1068. In McCall v. Alexander, 84 S.C. 187, 65 S.E ... 1021, which involved an action for malicious prosecution ... growing out of a charge of disposing of ... ...
-
Dyson v. Commonwealth Life Ins. Co. of Louisville, Ky.
... ... this well established rule calls our [176 S.C. 417] attention ... to the following cases: McCall v. Alexander, 84 S.C ... 187, 65 S.E. 1021; Wells v. Drayton, 1 Nott & McC ... (10 S.C. L.) 409, 411; Petrie v. Railroad Company, ... 29 S.C ... ...
-
Nock v. Fidelity & Deposit Co.
...between the same parties. This rule is sustained by this court in an opinion written by Mr. Justice Woods in the case of McCall v. Alexander, 84 S.C. 187, 65 S.E. 1021. 8 and 9 were not argued in the brief of appellant, and under the rule are deemed to be abandoned. Exceptions 10, 11, and 1......