Phillips v. Morrow

• Court: Supreme Court of Alabama
• Citation: 104 So. 260,213 Ala. 139
• Docket Number: 4 Div. 128
• Parties: PHILLIPS et al. v. MORROW.
• Decision Date: 06 November 1924

104 So. 260

213 Ala. 139

PHILLIPS et al.
v.
MORROW.

4 Div. 128

Supreme Court of Alabama

November 6, 1924

Rehearing Denied May 14, 1925

Appeal from Circuit Court, Coffee County; W.L. Parks, Judge.

Action by Marion N. Morrow against Lon L. Phillips and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

See, also, 210 Ala. 34, 97 So. 130.

Anderson, C.J., and Gardner, J., dissenting. [104 So. 261]

Ball & Beckwith, of Montgomery, and Sanders & Brunson, of Elba, for appellants.

Fleming & Yarbrough, of Enterprise, M.A. Owen, of Elba, and M.S. Carmichael, of Montgomery, for appellee.

THOMAS, J.

The first appeal is reported as Phillips v. Morrow, 210 Ala. 34, 97 So. 130. In that trial the general affirmative charge was not requested for the defendants. In the last trial such affirmative instruction was requested in writing as to each count of the complaint, and was refused.

There was verdict and judgment for plaintiff, a motion for a new trial was overruled, and due exception reserved.

It should be stated at the outset that the effect of the first decision was that the warrant under which plaintiff was arrested and detained was void, and that the surety on defendant official's bond was not liable for punitive damages.

The fact and the incidents of plaintiff's imprisonment without the confines of Coffee county would have been material evidence under appropriate counts for abuse of process. Wilson v. Orr, 210 Ala. 93, 97 So. 133; Walling v. Fields, 209 Ala. 389, 96 So. 471.

In Wilson v. Orr, supra, this court said that under a count declaring for a malicious arrest without probable cause and the general issue, the defendant could prove "the plaintiff was legally arrested by Wilson, and in doing so he used no unnecessary force." Under the written instructions requested by defendants as to each count of the complaint, we come to a reconsideration of the effect of the former decision, and its effect on the last trial. We have noted that on the former trial the general affirmative charge was not requested by the defendants. Such charges were requested on the last trial as to the several counts.

It has been generally declared that in order that process may afford protection to the executive officer executing the same (1) the issuing court must have had jurisdiction of the subject-matter on which it acted in issuing said process ( Edmunds v. State ex rel. Dedge, 199 Ala. 555, 558, 74 So. 965; Ferguson v. Starkey, 192 Ala. 471, 68 So. 348 [false imprisonment, against sheriff]; Bradford v. Boozer, 139 Ala. 502, 36 So. 716; Spear v. State, 120 Ala. 351, 25 So. 46; Williams v. State, 88 Ala. 80, 7 So. 101; Albright v. Mills, 86 Ala. 324, 5 So. 591; Johnson v. State, 73 Ala. 23; Womack v. Bird, 63 Ala. 500; Murphy v. State, 55 Ala. 252; Young v. Davis, 30 Ala. 213; Sasnett v. Weathers, 21 Ala. 673; Kirksey v. Dubose, 19 Ala. 43; Fortner v. Flanagan, 3 Port. 257); (2) the court must have had colorable authority to issue the process in question ( Ferguson v. Starkey, 192 Ala. 471, 68 So. 348; Noles v. State, 24 Ala. 672; Johnson v. State, 73 Ala. 21; Cary v. State, 76 Ala. 78; Collins v. State, 78 Ala. 433; Counts v. Harlan, 78 Ala. 551; Brown v. State, 109 Ala. 70, 87, 20 So. 103; Howard v. State, 121 Ala. 21, 25 So. 1000; Bradford v. Boozer, 139 Ala. 502, 36 So. 716; Broom v. Douglass, 175 Ala. 268, 57 So. 860, 44 L.R.A. (N.S.) 164, Ann.Cas.1914C, 1155); (3) the process must be in the prescribed form or be a substantial compliance therewith; and (4) the process must not be void on its face; and the officer does not become liable for his acts in a due execution thereof, because the process is merely irregular and voidable for such irregularity (Ferguson v. Starkey, 192 Ala. 471, 68 So. 348; Cogburn v. Spence, 15 Ala. 549, 50 Am.Dec. 140; Payne v. Governor, 18 Ala. 320).

The statute, coming to us unchanged from the Code of 1852, § 2284, meant this by the use of the words "is regular on its face and is issued by the competent authority." Wilson v. Sawyer, 37 Ala. 631; Clark v. Lamb, 76 Ala. 406; Spear v. State, 120 Ala. 351, 25 So. 46; Ferguson v. Starkey, 192 Ala. 471, 68 So. 348; Brown v. State, 109 Ala. 70, 20 So. 103; Baker v. Sparks, 202 Ala. 653, 81 So. 609; Ward v. Deadman, 124 Ala. 288, 26 So. 916, 82 Am.St.Rep. 172.

Be it understood that, under sections 6 and 143 of the Constitution, and sections 6278, 6694, 7227, 7519, and 7588 of the Code of 1907, as to criminal jurisdiction of the circuit courts the exercise of that jurisdiction and the fixing of the place at which causes must be tried, the provisions of section 6 of the Constitution as to providing for a change of venue, those of section 7140 of the Code of 1907, dispensing with the necessity of allegation of venue and the regulation that on the trial it must be proved that the offense was committed in the county, a distinction exists and is observed as to the jurisdiction (1) of the subject-matter (Ex parte Lancaster, 206 Ala. 60, 89 So. 721, 18 A.L.R. 706; Ex parte State ex rel. Brooks, 51 Ala. 60; Kirby v. State, 62 Ala. 51); and (2) of the person. Davis v. State, 153 Ala. 73, 45 So. 154; King v. State, 16 Ala.App. 341, 77 So. 935; Higginbotham v. State (Ala.App.) 101 So. 166.

In the instant case there was no variance between the affidavit and the warrant, [104 So. 262] each paper correctly charging the crime of burglary in Coffee county. The affidavit and complaint was before an officer having jurisdiction to consider the affidavit and to issue the process thereon. Did the fact that a return thereof was contrary to statute render the issue of the warrant void? The law declared the proper return. Davis v. McCary, 100 Ala. 545, 13 So. 665; A.C.L.R. Co. v. Carroll, 208 Ala. 361, 94 So. 820; Pell City Mfg. Co. v. Swearingen, 156 Ala. 397, 47 So. 272; Relfe v. Valentine, 45 Ala. 286.

Pertinent to a consideration of this question (whether the warrant was void on its face or merely irregular), it should be observed that the early cases declared that if the court has jurisdiction "of a cause," and merely proceeds erroneously, an action does not lie against the party who sues out the process, or "the officer or minister of the court who executes the precept or process." The Case of Marshalsea, 5 Coke's Rep. 67, 76; Mills v. Martin, 19 Johns. (N.Y.) 7; Reynolds v. Orvis, 7 Cow. (N.Y.) 269; Reynolds v. Corp. of Doglass, 3 Caines (N.Y.) 267, 274. If the court had no jurisdiction of the cause, the whole proceeding was held to be coram non judice; and that an action would lie against the officer executing the process was the holding in Duckworth v. Johnston, 7 Ala. 578, 581; Crumpton v. Newman, 12 Ala. 199, 202, 46 Am.Dec. 251; Noles v. State, 24 Ala. 672 (10). It will be noted that in the last-cited cases the warrants conformed to the affidavits that charged no crime. In Craig v. Burnett, 32 Ala. 728, there was a lack of jurisdiction in the premises.

The subject of void and irregular process in criminal cases has often been considered by this court.

In Crosby v. Hawthorn, 25 Ala. 221,...