U.S. Fidelity & Guaranty Co. v. Miller, 6 Div. 186

• Decision Date: 17 February 1938
• Docket Number: 6 Div. 186
• Citation: 235 Ala. 340,179 So. 239
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. MILLER.
• Court: Alabama Supreme Court

179 So. 239

235 Ala. 340

UNITED STATES FIDELITY & GUARANTY CO. v. MILLER.

6 Div. 186

Supreme Court of Alabama

February 17, 1938

Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Action by Chester Miller against the United States Fidelity &amp Guaranty Company as surety on the sheriff's bond, for alleged misfeasance under color of office in causing a search of plaintiff's residence for prohibited liquors. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Wilkinson & Wilkinson, of Birmingham, and Earney Bland, of Cullman, for appellant.

Beddow Ray & Jones, of Birmingham, for appellee.

BOULDIN Justice.

The action is against the surety on the sheriff's bond for alleged misfeasance under color of office in causing of a search of plaintiff's residence for prohibited liquors.

Count 1 is in trespass charging an unlawful breaking into and searching of plaintiff's residence while he and his family were absent.

On the trial defendant interposed a special plea of justification under legal process; namely, a search warrant in due form issued by lawful authority.

Upon the introduction of the warrant and supporting affidavit made by the sheriff, plaintiff filed count A, charging that the sheriff maliciously and without probable cause procured the search warrant to be issued on the alleged ground that prohibited liquors were kept upon the premises contrary to law, and caused plaintiff's dwelling to be searched under such warrant.

The evidence of defendant going to the question of malice and want of probable cause for suing out the search warrant was to this effect: Three women, "reputable, good people," on the day before Christmas, came to Mayor Dunlap of the city of Cullman, and complained to him and chief of police, Tucker, that bootlegging was going on in the neighborhood, known as Brickyard Community, outside the corporate limits but within the police jurisdiction of the city, begged the officers to put a stop to it, and gave the names of this plaintiff and two others as the persons whose premises should be raided.

The mayor, after hearing the complaints, sent the chief of police to the sheriff's office with instructions to have a search warrant issued for the search of the plaintiff's premises.

The chief of police went to the sheriff, informed him of the reports, gave the names of the women, and of the persons whose premises should be searched.

Thereupon the sheriff swore out the search warrants, one for plaintiff's premises, and on same day sent the deputy sheriff, with other police officers, to execute them. The plaintiff and family were away from home; having gone away over the holidays.

The searching officers reported no prohibited liquors found, only empty containers, gallon and pint sizes; some of them having a trace and smell of whisky.

Count A admits the issuance of a search warrant in legal form by lawful authority, and counts on malice and want of probable cause in procuring such process.

We find nothing in the evidence contradicting or casting suspicion on foregoing evidence on this issue.

We are of opinion a case was not made out under count A. The law casts upon sheriffs much responsibility in the enforcement of the prohibition statutes. That he acted promptly upon advice of fellow officers, also charged with a...