Pell City Mfg. Co. v. Swearingen

• Decision Date: 30 June 1908
• Parties: PELL CITY MFG. CO. v. SWEARINGEN.
• Court: Alabama Supreme Court

47 So. 272

156 Ala. 397

PELL CITY MFG. CO. v. SWEARINGEN.

Supreme Court of Alabama

June 30, 1908

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

Action by Marion Swearingen against the Pell City Manufacturing Company for false imprisonment. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The seventh count was in the following language: "Plaintiff claims $10,000 damages of defendant, a corporation organized under the laws of Alabama and doing business in St. Clair county at the time of the grievance herein complained of, and is now doing business in said county, for unlawfully procuring the arrest and imprisonment of plaintiff in St Clair county, against the will of plaintiff, for a long space of time, to wit, 51 days, embracing all the time from and including January 2, 1904, to and including February 23 1904, on a charge of trespass after warning. Plaintiff avers that said charge, before the commencement of this action, has been judicially investigated, and said prosecution ended, and said plaintiff discharged."

The defendant interposed the general issue and the plea of the statute of limitation of one year, as well as plea 3 "Defendant, for further answer to plaintiff's complaint and to each count thereof, says: That the alleged arrest, imprisonment, and injuries of which plaintiff complains, and for which he seeks in this action to recover damages of this defendant, were made in due and proper course of legal proceedings upon process not void, in that on or about the 2d day of January, 1904, one James W. Cosper made affidavit before one W. C. Beavers, who was at the time a justice of the peace in and for St. Clair county, Ala charging plaintiff with the criminal offense of entering upon the premises of the Pell City Manufacturing Company after having been warned not to so enter within six months preceding such entry. That said affidavit was in due form and substance, and in due course of legal procedure, charging plaintiff with trespass after warning. That, upon the making of said affidavit of complaint by the said James W. Cosper, the said W. C. Beavers, as such justice of the peace, in due form, substance, and due course of legal procedure issued a warrant for the arrest of plaintiff, and made the same returnable before the judge of the county court of St. Clair county, Ala., and caused said warrant to be placed in the hands of W. H. Crow, who was the duly qualified deputy sheriff of said county. That in obedience to the mandate of said warrant the said W. H. Crow, as such deputy sheriff, arrested plaintiff, using no force other than necessary in making such arrest in the execution of said warrant. That in default of bail plaintiff was placed in jail, and held by the sheriff of said county to await trial for said offense. That said cause was duly tried before Hon. W. S. Foreman, judge of the county court of said county, on or about the 23d day of February, 1904; the same being legally prosecuted by W. A. Starnes, who was deputy solicitor of said county, whereupon plaintiff was acquitted of said charge on his plea of not guilty."

Demurrers were filed both to the complaint and to the pleas; but from the condition in which the record is it is practically impossible to here set them out. The other facts are sufficiently stated in the opinion of the court.

M. M. Smith and Victor Smith, for appellant.

Denson & Denson and James A. Embry, for appellee.

McCLELLAN J.

Action for damages for false imprisonment. The judgment entry recites that all counts, save the seventh, were withdrawn by the plaintiff (appellee), that demurrers were sustained to plea 2 and overruled as to plea 3, and that issue was joined on plea 2. Plea 2 was the statute of limitations of 12 months, and plea 3 alleged the arrest to have been effected under void process. The stated contradiction apparent in the judgment entry is relieved by the bill of exceptions, from which it appears that plea 3, instead of plea 2, was the plea on which issue was taken; the plea not being subject to any of the...