Poole v. New, 8 Div. 607

• Court: Alabama Court of Appeals
• Writing for the Court: RICE, J.
• Citation: 22 Ala.App. 385,116 So. 108
• Parties: POOLE et al. v. NEW.
• Docket Number: 8 Div. 607
• Decision Date: 08 November 1927

116 So. 108

22 Ala.App. 385

POOLE et al.
v.
NEW.

8 Div. 607

Court of Appeals of Alabama

November 8, 1927

Rehearing Denied March 20, 1928

Appeal from Circuit Court, Morgan County; James E. Horton, Judge.

Action by Lon New against C.E. Poole, the American Surety Company of New York, and another. From a judgment in favor of plaintiff the named defendants appeal. Reversed and remanded. [116 So. 109]

A.J. Harris, of Decatur, for appellants.

[22 Ala.App. 387] John R. Sample, of Hartselle, and Tennis Tidwell, of Albany, for appellee.

RICE, J.

C.E. Poole was the sheriff of Morgan county. Jody Walker was one of his regular deputies. The American Surety Company of New York was the surety on C.E. Poole's official

bond. Jody Walker arrested appellee wrongfully, without a warrant. Later he swore out a warrant for appellee, purporting to charge him with the offense of vagrancy. The prosecution thus instituted was dismissed. Appellee then brought this suit in four counts against Poole, Walker, and the bonding company jointly. From a judgment in his favor, this appeal is prosecuted by the American Surety Company of New York and C.E. Poole.

The first two counts of the complaint claim, clearly, damages as for false imprisonment, and were not subject to demurrer. Deason v. Gray et al. (two appeals) 189 Ala. 672, 66 So. 646; Id., 192 Ala. 611, 69 So. 15. [116 So. 110.]

There are two sets of demurrers to the complaint incorporated into the record. The first is the demurrer of the defendants Walker and Poole, and in which is incorporated the separate demurrer of the defendant Poole to counts 3 and 4. The demurrer of the defendants Walker and Poole is addressed as follows:

"The defendants Poole and Walker separately and severally for demurrer to the complaint in the foregoing cause and to each count thereof separately and severally assign the following as causes."

The demurrer of the defendant Poole to counts 3 and 4 and incorporated in this demurrer is addressed in this way:

"C.E. Poole demurs to counts 3 and 4 of the complaint separately and severally for that."

This demurrer was filed on November 2, 1925. The second demurrer was filed on the 26th day of August, 1926, by all of the defendants, and it is addressed in this manner:

"The defendants separately and severally for demurrer to the complaint in the foregoing cause and to each count thereof separately assign the following as causes."

[22 Ala.App...