Phillips v. Morrow

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

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.

Ball &amp 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, 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, 228, the suit was against the affiant, the warrant was declared "informal, but not so wholly foreign from the scope and purview of the statutory offense, as to allow us, under the indulgence extended to such preliminary proceedings, to declare it absolutely void." This rule was followed in Brown v. State, 63 Ala. 97, a prosecution founded on affidavit and warrant from justice of the peace. It was declared that a complaint of the commission of a criminal offense is by the statute defined as an allegation that a person has been guilty of a designated public offense; and a warrant issued upon it is sufficient if it designates the offense by name or describes it, or if it employs terms from which the offense may be inferred. Such is the statutory rule which obtained when the instant warrant was issued and executed. Code 1907, §§ 7584, 7588. In Spear v. State, 120 Ala. 351, 25 So. 46, the offense charged, and held sufficient, was "the offense of carrying a concealed pistol." In Adams v. Coe, 123 Ala. 664, 26 So. 652, the suit was for false imprisonment against the party making the affidavit; held, a warrant for burglary is not void by the absence of recitation that the breaking into the storehouse was accompanied by an intent to shoot or to commit a felony that was implied. So, also, the fact that property for use, etc., was kept in the store is not averred does not render the warrant void. See, also, Southworth v. United States, 151 U.S. 179, 14 S.Ct. 274, 38 L.Ed. 119.

The case of Stowers Furniture Co. v. Brake, 158 Ala. 639, 651, 48 So. 89, was a suit for trespass vi et armis and de bonis asportatis; it was "conceded" that the writ under which the constable professed to act was void on its face. The case of Stetson & Co. v. Goldsmith, 30 Ala. 603, was an action for suing out an attachment, and the writ was void on its face. Oates v. Bullock, 136 Ala. 537, 33 So. 835, 96 Am.St.Rep. 38, was a suit for false imprisonment against the party suing out the warrant, and there was no signature of the officer to the same; held to be a void warrant. The case of Withers v. Coyles, 36 Ala. 320, was not followed in Broom v. Douglass, 175 Ala. 281, 57 So. 860, 44 L.R.A. (N.S.) 164, Ann.Cas.1914C, 1155. The latter case will be considered presently.

In Rhodes v. King, 52 Ala. 272, the complaint was in trespass for maliciously, etc., causing the arrest and imprisonment of plaintiff; the warrant and affidavit set forth in the plea of justification was that "under false pretenses [defendant] obtained lint cotton of him." The statute was adverted to, section 3714 of the Code of 1867 which is the same as the present false pretense statute, section 6920 of the Code of 1907; held, the warrant was...