Strain v. Irwin

• Citation: 70 So. 734,195 Ala. 414
• Decision Date: 16 December 1915
• Docket Number: 8 Div. 822
• Parties: STRAIN v. IRWIN.
• Court: Supreme Court of Alabama

70 So. 734

195 Ala. 414

STRAIN v. IRWIN.

8 Div. 822

Supreme Court of Alabama

December 16, 1915

Appeal from Circuit Court, Morgan County; D.W. Speake, Judge.

Action by June Irwin against Tom Strain for damages for malicious prosecution and false imprisonment. Judgment for plaintiff and defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449. Affirmed.

Wert &amp Lynne and C.L. Price, all of Decatur, for appellant.

Osceola Kyle, of Decatur, for appellee.

SOMERVILLE J.

The first count of the complaint is in code form for malicious prosecution. Its allegation that the charge had been previously investigated and the prosecution ended by plaintiff's discharge was sufficient, without alleging a judicial investigation.

Watson v. Cain, 171 Ala. 151, 54 So. 610. In such a count the claim for attorney's fees as damages, being no part of the cause of action, and being intended only as a warning to the defendant of an issue to be met, does not render the count demurrable, although it is not alleged that such a fee was either reasonable in amount or necessary in fact. These are questions of evidence merely. Nor do the allegations that the warrant was issued by a justice of the peace of Morgan county, and that it was executed by a deputy sheriff of Lawrence county, show no cause of action on the face of the count. The arrest may have been authorized by proper indorsement on the warrant, as provided by section 6278 of the Code. If not, that fact was matter for defensive pleading and proof. The demurrers to this count are clearly without merit.

The second count is in code form for false imprisonment. It charges that defendant, maliciously and without probable cause, caused "plaintiff to be illegally arrested on a charge of removing property upon which a mortgage existed, for ______ days, viz., on the 25th of May, 1912." An illegal arrest is both technically and in fact a false imprisonment, and the additional allegation of an imprisonment is not essential to the statement of a cause of action under Code, form 19, p. 1198. Nor is the prescribed allegation of the duration of the imprisonment other than directory, since it relates merely to the extent of the injury; and a momentary detention, if wrongful, gives a complete cause of action. 19 Cyc. 325.

The third count, though not following the code form, states a good cause of action for false imprisonment. Sheppard v. Furniss, 19 Ala. 760, 764; Ragsdale v. Bowles, 16 Ala. 62.

Each count charges an illegal arrest. Conceding that this would ordinarily be objectionable in a common-law count, as being a mere conclusion of the pleader, yet, the charge of illegality being unnecessary to show a prima facie cause of action, its form cannot render the count demurrable.

It is not necessary to allege the place where, the manner in which, or the agent by whom, the arrest was made, nor that the defendant who caused it was present when it was made.

The second and third counts were sufficient as against the grounds of demurrer assigned.

Besides the general issue, defendant interposed two special pleas "for answer to plaintiff's complaint and each count thereof."

Plea 2 sets forth (1) the affidavit made by defendant before the justice, charging plaintiff with fraudulently selling or removing certain personal property of the value of $200 with knowledge of affiant's claim thereto under a written instrument; (2) the warrant of arrest issued therein directed to any lawful officer of Morgan county, "on a charge of removing property upon which a mortgage existed"; and (3) the appearance bond taken from plaintiff by the arresting officer. It also alleges...