Rigdon v. Jordan

• Decision Date: 22 October 1888
• Citation: 7 S.E. 857,81 Ga. 668
• Parties: RIGDON v. JORDAN et al.
• Court: Georgia Supreme Court

7 S.E. 857

81 Ga. 668

RIGDON v. JORDAN et al.

Supreme Court of Georgia

October 22, 1888

Error from city court of Atlanta; VAN EPPS, Judge.

Action by Rigdon against Jordan & Stewart for malicious prosecution. Verdict and judgment for defendants, and plaintiff brings error.

Alexander & Turnbull, for plaintiff in error.

Milledge & Smith, for defendants in error.

SIMMONS J.

This was an action brought by the plaintiff against the defendants for a malicious prosecution. The defendants filed two pleas to-wit, the plea of the general issue, and the plea of justification. On the trial of the case, the jury, under the charge of the court, found for the defendants, upon the plea of the general issue. The plaintiff made a motion for a new trial, upon the grounds set out therein, which was overruled by the court, and he excepted.

1. The fifth, sixth, and seventh grounds of the motion will be considered together. They are, in substance, that the court erred in holding the second plea to be a good plea of justification, and in holding that the defendants could file these two pleas, and still be entitled to the opening and conclusion of the argument. The first question we are called upon to decide is whether this was a good plea of justification or not. Section 3051 of our Code provides "In every case of tort, if the defendant was authorized by law to do the act complained of, he may plead the same as a justification. By such plea he admits the act to be done and shall be entitled to all the privileges of one holding the affirmative of the issue." In this plea the defendants admit that they caused the warrant to issue, and that the plaintiff was arrested under it, imprisoned, and carried before a magistrate, tried for the offense of cheating and swindling, and discharged. But they say they were authorized by law to do all of said acts; that they had probable cause, and were justified in doing so, because they had reason to suspect the guilt of the plaintiff of the crime charged in the warrant, for he obtained credit and goods from them in April and May, 1885, to the amount of $12, by falsely representing to them that he had a contract with E. F. May to pay him $30 per month, and by reason of these false representations the defendants were defrauded; and "all of said acts were done by them in the utmost good faith and without malice." It will be observed that, in this plea they admit, in the very words of the declaration, the act complained of, and they allege that they were authorized by law to do so, and set out the facts which they say amounted to probable cause. If they had probable cause for this arrest, they were authorized by law to have it made. Under the laws of this state, it is not required of a prosecutor to be fully satisfied of the truth of the charge; nor is it required of him to guaranty a conviction upon the charge that he makes against the person accused. Having admitted in this plea the act complained of in the declaration, and having alleged that they were justified in making the charge, because they had probable cause for the arrest, we think it was a sufficient plea of justification. Steam-Ship Co. v. Williams, 69 Ga. 251; Ventress v. Rosser, 73 Ga. 537; Henderson v. Francis, 75 Ga. 178. These authorities do not conflict with the case of Phelps v. Thurman, reported in 74 Ga. 837. In the latter case the charge in the declaration was not fully admitted in the plea, nor were any facts set out therein to show upon what the defendant acted in suing out the distress warrant. Nor do they conflict with the case of Seymour v. Bailey, 76 Ga. 338. In that case only a part of the charge contained in the declaration was admitted in the plea.

2. The next question which arises is whether a defendant can file a plea of the general issue, and a plea of justification also in actions of this kind; and, if so, what is the effect of the two pleas, under our Code. Section 3453 of the Code allows defendants to file contradictory defenses to every case brought against them. These two pleas, in actions of this sort, are not only contradictory, but very inconsistent with each other. The general issue denies the allegations in the declaration; the plea of justification admits them. Still, under this section of the Code, and under the statute of Anne, the defendant is entitled to file them. And under section 3560, if there are several pleas filed by the defendant, the verdict must show on which one of them it is rendered. It would seem, therefore, that under our Code, and under the statute of Anne, a defendant in an action of tort may file both pleas. But what is the effect of filing the plea of justification in an action of tort? It seems that under the statute of Anne, when these two pleas were filed, the plea of justification was not treated as an admission of the facts charged in the declaration, but was treated merely as pleading. The plaintiff, when these two pleas were filed, could not rely on the defendant's plea of justification to make out his case, but had to introduce testimony in order to make it out. Ricket v. Stanley, 6 Blackf. 169, and authorities there cited; Doss v. Jones, 5 How. (Miss.) 158; and Wright v. Lindsay, 20 Ala. 428. This rule was changed, to some extent, by No. 55 of the old rules of court. See 2 Ga. 477. That rule declared that in all cases arising ex delicto, if the defendant pleads justification, and takes upon himself the burden of proof, he should have the right to open and conclude. If he justified in an action of tort, and announced to the court that he assumed the burden of proof, under this rule he was entitled to open and conclude, although the plea of general issue had been filed. It amounted to an abandonment of that plea. We think our Code has changed both of these rules. It changed the rule of court, because it is no longer optional with the defendant to assume the burden of proof when he files the plea of justification, but it is mandatory. It changed the rule under the statute of Anne, because it declares that "by such plea he admits the act to be done, and shall be entitled to all the privileges of one holding the affirmative of the issue." When, therefore, a defendant files a plea of justification, it is an admission by him that he did the act complained of in the declaration. If it is an admission, then there is no necessity for the plaintiff to introduce proof to establish the facts set out in his declaration. The burden is shifted from the plaintiff to the defendant the very moment the defendant files this plea. It devolves upon him, when this plea is filed, to establish the truth of it by proper testimony. Although the Code declares that a defendant may file contradictory pleas, and requires the jury to say upon what plea...