Taylor v. Smith

• Decision Date: 27 November 1894
• Citation: 16 So. 629,104 Ala. 537
• Parties: TAYLOR v. SMITH ET AL.
• Court: Alabama Supreme Court

16 So. 629

104 Ala. 537

TAYLOR v. SMITH ET AL.

Supreme Court of Alabama

November 27, 1894

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by Thomas T. Taylor against Joseph S. Smith, sheriff of Jefferson county and others, for damages for refusing to permit plaintiff to obtain bail. Judgment was rendered for defendants, and plaintiff appeals. Affirmed.

This action was commenced on the 6th day of May, 1889, by the appellant, Thomas T. Taylor, against the defendant Joseph S Smith, as sheriff of Jefferson county, and the sureties on his official bond, to recover damages for the arrest and imprisonment of the plaintiff on a warrant, issued by a justice of the peace, charging plaintiff with a misdemeanor for unlawfully and wantonly injuring and disfiguring an animal. The gravamen of the complaint was, that plaintiff offered, when arrested, to make a good and sufficient bail bond, which the sheriff refused to take, but maliciously imprisoned him in the county jail. The complaint, loosely and very imperfectly drawn, claims damages consequential to the arrest-the deprivation of liberty, bodily discomfort, mental suffering, the expenditure of counsel fees in and about procuring his discharge. It was demurred to on various grounds, but no ruling of the court appears in the transcript on the demurrers. An amended complaint was filed by leave, on the 18th March, 1890, on substantially the same but fuller averments than those contained in the original complaint except its recitals by way of inducement, which were retained as the basis for the charges contained in the amendment. On the 30th March, this amendment was withdrawn, and the plaintiff was allowed to file an additional amended complaint, charging that the condition of the sheriff's bond had been broken, in that the sheriff, on the 6th of August, 1888, had caused the plaintiff to be arrested on a warrant, issued by a justice of the peace, returnable to the criminal court of Jefferson county, which warrant is set out in full, and averring that it became and was the duty of the defendant, Smith, to carry the plaintiff before the criminal court of Jefferson county, but the defendant wrongfully committed the plaintiff to jail, whereby he suffered damage etc. To this complaint there was a demurrer, which was not acted on. On the 15th of September, 1892, the plaintiff was allowed to file an additional amended complaint, with four counts, the first and second of which set out the sheriff's bond and the warrant of arrest. The first averred, that the condition of the bond was broken, in that on the 12th of December, 1888, the said Smith, as sheriff caused the plaintiff to be arrested under and by virtue of a warrant of arrest, issued by a justice of the peace in and for the county of Jefferson, returnable to the criminal court of said county; that it became and was the duty of said sheriff to cause the plaintiff to be brought without delay before the criminal court, which he failed to do, but wrongfully committed him to jail, and confined him there for the space of 36 hours, whereby he suffered and was damaged, etc. The second count is like the first in its averments; except that said Smith, as sheriff, by his deputy, J. E. Byars, caused the arrest and imprisonment. The other counts, the third and fourth also added, need not be noticed, as they were afterwards withdrawn. To the complaint as amended, the defendants interposed 16 pleas, which appear to be pleas to all the counts of the complaint, original and amended. Some of these were in effect, no more than the general issue; others, that the cause of action set up by the amendments to the complaint was barred by the statute of limitations of one year. To the third, fifth, sixth, ninth and fourteenth, the plaintiff demurred. To the seventh, eleventh and twelfth he replied. The seventh set up, that the plaintiff, having been arrested on a warrant for a misdemeanor returnable to the criminal court of Jefferson county, failed to give a good and sufficient bond for his appearance before that court, and in default thereof, the said Smith, as sheriff, committed the plaintiff to, and retained him in jail until he executed a sufficient bond, and as soon as he did execute one, he was released and discharged from prison. The eleventh and twelfth were to the same effect as the seventh, making the further averments, that the warrant of arrest was regular and proper on its face; that plaintiff was arrested under it, and in default of a bond was committed to jail, and retained there until he executed a bond on the morning of the 13th December, 1888, when he was discharged. The tenth plea was not demurred or replied to. It averred, that "the plaintiff was arrested upon a warrant issued by a justice of the peace, returnable to the criminal court of Jefferson county, state of Alabama, charging the plaintiff with a misdemeanor, and that the plaintiff failing to give a good and sufficient bail bond for his appearance before said court, the said defendant, J. S. Smith, in default of plaintiff's giving said bail bond, committed plaintiff to jail and retained him in jail until he executed a sufficient and good bail bond, and as soon as he executed and delivered to the said J. S. Smith, as such sheriff of said county, a good and sufficient bail bond for his appearance to answer said prosecution, before the said criminal court, the said defendant, J. S. Smith, released and discharged plaintiff from prison and set him at liberty." The demurrers to the eleventh and twelfth pleas were not acted on. The replications to the seventh, eleventh and twelfth pleas were, that under said warrant it became and was the duty of defendant, J. S. Smith, to cause plaintiff to be brought, without delay, before the criminal court of Jefferson county, which was then in session, which he failed to do, but wrongfully committed plaintiff to jail. The minute entry recites, that on the 30th of March, 1890, the plaintiff, by leave, withdrew the amendments allowed and filed on the 18th of March, 1890; and was allowed, on that day, to file another amended complaint with five counts, but no such complaint appears in the transcript. At the trial, as shown by the judgment entry, the third and fourth counts to the amended complaint, filed on the 15th September, 1892, were withdrawn by the plaintiff, and the demurrers to the complaint were withdrawn, and issue was joined. The evidence for the plaintiff tended to show that he was arrested some 15 miles away from Birmingham in the presence of his father, who said that he and W. M. Killough would go on the bail bond, if Byars, the deputy making the arrest, would go with them to said Killough's house, and Byars replied that he did not know that he had the right to take the bail bond; that no bail bond was offered; that on their way to Birmingham, they met Killough, who offered to go on the bail bond, but Byars said he did not know that he was authorized to take the bond; that no bond was offered, nor did the evidence show that Killough was a sufficient surety on the bond; that on arrival at Birmingham, the deputy took plaintiff directly to the jail; that plaintiff told the deputy, that one W. S. Brown, who kept a store in Birmingham, would go on his bond, but he refused to take him by Brown's store, although it was on the way to the court house; that plaintiff was not taken before the criminal court of Jefferson, nor before the...