Oates v. McGlaun

• Decision Date: 16 November 1905
• Citation: 145 Ala. 656,39 So. 607
• Parties: OATES v. MCGLAUN.
• Court: Alabama Supreme Court

39 So. 607

145 Ala. 656

OATES v. MCGLAUN.

Supreme Court of Alabama

November 16, 1905

Appeal from Circuit Court, Houston County; A. H. Alston, Judge.

"Not officially reported."

Action by J. T. McGlaun against W. S. Oates. From a judgment for plaintiff, defendant appeals. Reversed.

Defendant being examined as a witness in his own behalf, was asked how long Solomon had been a justice of the peace, stating at the time that he proposed to show that Solomon had been filling the office of justice of the peace for several years. The court sustained objection to the testimony, and defendant excepted. This is all the record shows as to this matter. Solomon was the justice of the peace who issued the warrant upon which the arrest was made, and out of which this suit arose. He failed to sign the warrant.

In his address to jury plaintiff's attorney said: "It is the duty of the jurors of this county to tell Dr. Oates that he cannot collect his debts in this way, if he has adopted this method of collecting the debts." Defendant objected to this argument and moved the court to exclude it, and the court refused.

Charge 1, requested by defendant and refused by the court: "The jury in this case cannot, under the evidence, find any verdict against Oates for malicious prosecution."

Charge 2, requested by the defendant and refused by the court "The court charges the jury that there is no evidence before them that Oates ratified the unlawful arrest."

Charge 3, refused to defendant: "The court charges the jury that there is no evidence before them that Oates caused the arrest of plaintiff."

Charge 4, requested by and given for plaintiff: "If the jury believe that Oates' signing the warrant did not cause Solomon to omit to sign it, then, if you believe that Oates having knowledge of the void condition of the warrant continued to prosecute the plaintiff, then the defendant, Oates, is liable, and your verdict must be for the defendant."

Charge 3, requested by and given for plaintiff: "If the jury believe from the evidence that the act of Oates in signing the warrant caused the plaintiff to be arrested under a void process, then they must find for the plaintiff."

Charge 2, requested for and given by the court to plaintiff: "Although you may believe that Oates' signing the warrant did not cause Solomon to omit signing it, yet, if you further believe that Oates continued to prosecute the plaintiff with full knowledge of the void condition of the warrant, the plaintiff is entitled to recover."

Charge 1, requested by and given for plaintiff: "If the jury believe from the evidence that the fact that Oates signed the warrant caused the justice of the peace to issue the warrant without signing it, they must find for the plaintiff."

A. E. Pace, for appellant.

J. P. Pelham and Dell & Crawford, for appellee.

HARALSON J.

The action is for false imprisonment, "plaintiff claiming of defendant $1,000.00 for maliciously and without probable cause therefor, causing the plaintiff to be arrested and deprived of his liberty on a charge of removing property on which another had a lien, for five days," etc. It is substantially in Code form (No. 19, p. 946 of Code). No point was made as to the sufficiency of the complaint, and the trial was had on issue joined on it. The facts of the case need not here be repeated. They are well set out in the opinion in the case of Oates v. Bullock, 136 Ala. 543, 33 So. 835, 96 Am. St. Rep. 38, where most of the questions involved in this case were considered and decided. For the sake of brevity, we consider in this case, as they appear, the errors assigned which are insisted on.

1. The plaintiff while being examined as a witness in his own behalf, testified that when arrested by the constable, he was put in the guard house of the town; that the place was cold damp...