Reach v. Quinn

• Decision Date: 19 January 1909
• Citation: 159 Ala. 340,48 So. 540
• Parties: REACH v. QUINN.
• Court: Alabama Supreme Court

48 So. 540

159 Ala. 340

REACH v. QUINN.

Supreme Court of Alabama

January 19, 1909

Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.

Action by W. L. Reach against Oliver J. Quinn. From the judgment both parties appeal. Affirmed.

The fifth count was as follows: "Plaintiff claims of defendant said sum of $500 as damages, for that said defendant maliciously and without probable cause therefor made an affidavit against plaintiff on a charge of refusing to work the public road, and as the proximate result of the making of such affidavit the plaintiff was arrested, as the defendant intended he should be, and required to give bond for his appearance for trial upon said charge before J. W Jones, justice of the peace of beat 11, Bibb county, Ala and plaintiff avers that such charge had been judicially investigated and determined, and plaintiff herein discharged. And plaintiff avers that by reason of such prosecution the plaintiff lost one day's work, of the reasonable value of $6, for which he specially sues." The demurrers raised the question decided in the opinion.

Lavender & Thompson, for appellant.

Daniel Collier and John T. Ellison, for appellee.

DOWDELL J.

The first assignment of error goes to the ruling of the court below in sustaining a demurrer to the fourth count as amended. The minute entry recites that the demurrer to the fourth count as amended is sustained, but it nowhere appears from the record in what the amendment to the fourth count consisted. In this state of the record, not knowing in what the amendment consisted, we cannot review the court's action.

The fifth count, whether intended as a count in case for a malicious prosecution or as a count in trespass for false imprisonment, was in either aspect faulty, and subject to the demurrer interposed. As a count in case for malicious prosecution, it is faulty omitting to aver the issuance of process. Davis v. Sanders, 133 Ala. 275, 32 So. 499 and authorities there cited. As a count in trespass for false imprisonment, it fails to aver that the defendant arrested and imprisoned, or caused to be arrested and imprisoned, the plaintiff. Manifestly it was intended by the pleader as a count in case for malicious prosecution, since it contains all of the necessary averments of such a complaint (form 20, Code 1896, p. 947, c. 91), except the averment of the issuance of the warrant.

There was no error in excluding the warrant...