McCall v. Alexander

• Decision Date: 28 July 1908
• Citation: 61 S.E. 1106,81 S.C. 131
• Parties: McCALL v. ALEXANDER.
• Court: South Carolina Supreme Court

61 S.E. 1106

81 S.C. 131

McCALL v. ALEXANDER.

Supreme Court of South Carolina

July 28, 1908

Appeal from Common Pleas Circuit Court of Oconee County; D. E Hydrick, Judge.

Action by C. H. McCall against T. E. Alexander. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

J. R Earle and Stribling & Herndon, for appellant.

R. T Jaynes, for respondent.

GARY A. J.

This is an action for malicious prosecution, and the appeal is from an order sustaining a demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, in that it does not allege that the warrant under which the plaintiff was arrested contained the statement that the property was sold without the written consent of the lienee.

The allegations of the complaint are as follows: "(1) That on the 9th day of July, 1906, the defendant, T. E. Alexander, applied for and obtained from A. P. Crisp, a magistrate in the county of Oconee, a warrant against the plaintiff herein, naming the plaintiff as Kit McCall, under the charge that the plaintiff did dispose of crop, under lien, of the value of $19. (2) That on the 30th day of July, 1906, the plaintiff requested and obtained an order, from the said A. P. Crisp, magistrate, which was entered upon the said warrant as follows, to wit: 'Nol prosses. July 30, 1906, A. P. Crisp, M. O. C.' (3) That on the said 30th day of July, 1906, the defendant, T. E. Alexander, applied for and obtained from A. P. Crisp, a magistrate in and for Oconee county, a warrant of arrest for the plaintiff as C. H. McCall, alias Kit McCall, with selling or disposing with one bale of cotton and seed out of same, of the value of about $40, from which amount deponent held a statutory lien for rent, without paying same in the clerk's office, within 10 days. (4) That under the warrant first above mentioned this plaintiff was arrested, and compelled to come to Walhalla from his home, a distance of about 15 miles, and bring with him a bondsman and enter into recognizance, in the sum of $200, in order to obtain his release. (5) That on the 30th day of July, 1906, the said prosecution or cause was heard before A. P. Crisp, magistrate, as aforesaid, and, after a full and fair investigation of all the facts, the said case was by order of the said magistrate dismissed, and the defendant discharged, and the prosecution thereby ended. (6) That in applying for and obtaining the warrants, in the aforesaid prosecution, the defendant acted maliciously, willfully, and without any cause to sustain the said prosecution; the defendant well knowing that he had received a full and complete settlement of all rents due. (7) That by reason of the said willful, malicious, and unwarranted prosecution, the plaintiff herein sustained damages in the sum of $1,000."

Section 337 of the Criminal Code of 1902, provides that: "Any person or persons who shall sell or dispose of any personal property, on which any mortgage or other lien exists, without the written consent of the mortgagee or lienee, or the owner or holder of such mortgage or lien, and shall fail to pay the debt secured by the same, within ten days after such sale or disposal, or shall fail in such time to deposit the amount of said debt, with the clerk of the court of common pleas for the county in which the mortgage or lien debtor resides, shall be deemed guilty of a...