Stewart v. Blair
| Decision Date | 09 February 1911 |
| Citation | 54 So. 506,171 Ala. 147 |
| Parties | STEWART v. BLAIR. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Coosa County; H. P. Merritt, Special Judge.
Action by George Blair against J. S. Stewart. From a judgment for plaintiff, defendant appeals. Affirmed.
John A Darden and George A. Sorrell, for appellant.
Riddle Ellis, Riddle & Pruet, for appellee.
This case was tried upon count 1 for malicious prosecution, the other counts having been eliminated by amendment, and any ruling that the trial court made upon the demurrers to the stricken counts can be of no avail to the appellant, as he was put to no defense to said counts.
The plaintiff in order to recover in this action had to aver and prove a final determination of the prosecution, but when he showed a discharge by the magistrate, he proved a determination of this particular prosecution. The justice was only a committing magistrate, but when he discharged the defendant, this operated as an end of this particular prosecution, and it was not incumbent upon the plaintiff to go on and show an investigation and failure to indict by the grand jury. Had the magistrate bound the accused over to the grand jury, their investigation and action would have been but a continuation of the prosecution, and it would be up to the accused to show a final determination by said body. Nor would the discharge by the magistrate preclude an indictment or operate as a bar thereto, and the prosecutor would still have a right to go before the grand jury and have the accused answer to an indictment; but this would not be a continuation of the same prosecution, which had been put to an end by the action of the committing magistrate, in discharging the accused upon the preliminary hearing. Long v Rogers, 17 Ala. 540; Rider v. Kite, 61 N. J Law, 8, 38 A. 754; Foster v. Napier, 73 Ala. 595. The plaintiff, having shown the judgment discharging him, was not required to negative a subsequent bill by the grand jury, and any error that he committed in attempting to do this, by the witness Bailey, was without injury to the defendant.
It has been repeatedly held, in cases of this character, where the existence of malice is essential to a recovery, and the defendant did not make the affidavit or cause the prosecution to be instituted until he was advised to do so by an attorney, after all the facts had been fairly submitted, that these facts when proven are a complete defense to the action. Goldstein v. Drysdale, 148 Ala. 486, 42 So. 744; Shannon v. Simms, 146 Ala. 673, 40 So. 574; O'Neal v. McKinna, 116 Ala. 620, 22 So. 905. It was a question, however, for the jury to determine whether or not the defendant made a full and fair statement of the facts...
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Nesmith v. Alford
...of Education et al, 5 Cir., 294 F.2d 150. 15 34 Am.Jur., Malicious Prosecution, § 71, page 747, citing the Alabama cases of Stewart v. Blair, 171 Ala. 147, 54 So. 506, and Kemp v. York, 16 Ala.App. 675, 81 So. 195, certiorari denied by Supreme Court of Alabama, 202 Ala. 425, 80 So. 16 "When......
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Steward v. Gold Medal Shows
... ... & I. Co. v. Devaney, 7 Ala.App. 457, ... 60 So. 990, 991, in a case for malicious prosecution, Judge ... Pelham cites with approval Stewart v. Blair, 171 ... Ala. 147, 54 So. 506, Ann.Cas.1913A, 925, to the effect that ... it was proper to permit the plaintiff to show that he was a ... ...
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Wilson v. Orr
...In the absence of allegation, this evidence was relevant to no issue in the cause. Walling v. Field (Ala. Sup.) 96 So. 471; Stewart v. Blair, 171 Ala. 147, 54 So. 506, Ann. Cas. 1913A, 925; Lay v. Postal Tel. Cable 171 Ala. 172, 54 So. 529; Irby v. Wilde, 150 Ala. 402, 43 So. 574; S.-S. S. ......
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Alabama Dry Dock & Shipbuilding Co. v. Bates
...Sloss-Sheffield Steel & Iron Co. v. O'Neal, 169 Ala. 83, 52 So. 953; Abingdon Mills v. Grogan, 167 Ala. 146, 52 So. 596; Stewart v. Blair, 171 Ala. 147, 54 So. 506, 1913A, 925. This is indeed a sound and reasonable rule. Should the jury be deprived of passing on this matter, the defense of ......