McCarty v. Williams

• Decision Date: 23 October 1924
• Docket Number: 6 Div. 227
• Citation: 212 Ala. 232,102 So. 133
• Parties: McCARTY v. WILLIAMS.
• Court: Alabama Supreme Court

102 So. 133

212 Ala. 232

McCARTY v. WILLIAMS.

6 Div. 227

Supreme Court of Alabama

October 23, 1924

Rehearing Denied Nov. 27, 1924

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by Isaac Williams against W.C. McCarty. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals, under Acts 1911, p. 449,§ 6. Reversed and remanded.

Agent for collection of loan is not impliedly authorized to sue out writ of garnishment for debt not legally subject to writ and, in absence of evidence of express authority judgment against principal for malicious prosecution of garnishment is without support.

The action is on the case. Count A of the amended complaint charges that the defendant McCarty "did have, or cause to be issued, a writ of garnishment directed to plaintiff's employer" (describing it), which was served on plaintiff's said employer, and which "was wrongfully issued, or caused to be issued, in that, at the time of the issuance of said writ, plaintiff was not indebted to defendant."

Count B is the same as count A, except that it charges that the writ of garnishment "was wrongfully issued, or caused to be issued, in that, at the time of the issuance of said writ the indebtedness, or claim upon which the defendant's suit or action against plaintiff was based, was not one upon which a writ of garnishment upon the summons could have been lawfully issued."

Count C is the same as count A, with the added charge that defendant "did, deliberately, knowingly, and in wanton disregard of plaintiff's rights, cause said writ of garnishment to be issued, knowing that said action was wrongful and illegal and with the knowledge that plaintiff would be damaged in the manner aforesaid."

Defendant demurred to each count separately on the ground, among others not necessary to be stated, that it did not state a cause of action. The demurrer being overruled, defendant pleaded the general issue in short by consent, and issue was thereupon joined.

At the close of plaintiff's evidence, defendant demurred to the evidence on the ground that it failed to connect the defendant McCarty with the wrong charged. The trial court overruled this demurrer, and thereupon summarily submitted the case to the jury for the ascertainment of damages, holding that the question of defendant's liability was concluded by the adverse ruling on his demurrer to the evidence.

In the general oral charge to the jury the trial judge said:

"It is admitted that the garnishment was wrongfully served and served as alleged in the complaint. He has nevertheless to prove to you the elements of the damage which he claims, and it is for you to determine what the damage is, and that damage has to be proved to you under the first two counts of the complaint; that is, as to what he did, and you cannot speculate as to that--that is, under A and B." The verdict of the jury was for $500 damages, and the court entered judgment accordingly.

Matthews & Morrow, of Birmingham, for appellant.

Beatty Messer & Royall, of Birmingham, for appellee.

SOMERVILLE J.

The effect of a demurrer to the evidence is to admit every fact which the testimony establishes, or reasonably tends to establish.

"The court does not stand in the place of a jury, to render such a judgment as the jury ought to have rendered, but to render one against the defendant, if the jury, from the evidence, could legally have done so." Shaw v. White, 28 Ala. 637, 640; Bates' Adm'r v. Bates, 33 Ala. 102.

When the demurrer to the evidence was overruled, the liability of defendant, under any count of the complaint which stated a cause of action, was conclusively established, and the only issue for submission to the jury was as to the amount of damages to be awarded the plaintiff. Gluck v. Cox, 90 Ala. 331, 8 So. 161; Maund v. Loeb, 87 Ala. 374, 6 So. 376. The trial court did not err in following this procedure.

It is clear, however, that counts A and B of the complaint do not state a cause of action. This is not an action for breach of the garnishment bond, and hence the complaint must exhibit a common-law cause of action, as for a malicious prosecution, in order to authorize and support a recovery, which it fails to do.

The merely wrongful institution of a legal proceeding, whether civil or criminal, does not give rise to an action on the case for malicious prosecution, and is not an actionable wrong; the only compensation to which the defendant in such a case is entitled being a judgment in the proceeding itself for the costs of the suit incurred by him. McKeller v. Couch, 34 Ala. 336, 341; Tucker v. Adams, 52 Ala. 254, 256.

"If wrongful, but not malicious, no recovery can be had. If wrongful and malicious, but with probable cause, the action will fail. And if wrongful and without probable cause and also without malice, no action can be maintained. There must, in other words, to authorize a recovery, be a concurrence of the three conditions--wrong, malice, and want of probable cause." Brown v. Master, 104 Ala. 451, 463, 16 So. 443, 447.

And in Benson v. McCoy, 36 Ala. 710, 711 (1860) it was said...