148 So. 801 | Ala. | 1933
Lead Opinion
This is a suit against Gilbert, a law enforcement officer, and his bondsman, the Indemnity Company. The trial court sustained demurrers to each count of the complaint, thus forcing the plaintiff to take a nonsuit.
The brief of counsel for appellant seems to insist only upon the sufficiency of count 2, and we need not, therefore, consider or discuss the other counts.
Count 2 is for a malicious prosecution, and is substantially good as against Gilbert. Indeed, the appellees' brief does not question the same as to Gilbert, but contends that it was subject to the demurrer of the Indemnity Company. We cannot agree to this contention, as it substantially conforms to counts held sufficient in the cases of Pittman v. Johnson,
Reliance is had by the appellees' counsel on the case of Burge v. Scarbrough,
The trial court erred in sustaining the demurrer of the Indemnity Company to count 2, and the judgment of the circuit court is reversed, the judgment of nonsuit set aside, the case is restored to the docket, and the cause is remanded.
Reversed and remanded.
GARDNER, BOULDIN, and FOSTER, JJ., concur.
Addendum
It is next contended, for the first time, upon this application, that count 2 is bad, in that it fails to aver that the writ of arrest was sued out without "probable" cause. "The statement that it is sued out without 'proper' cause falls short of the statutory allegation." As to this, we can only quote the record; count 2 says: "And maliciously and without probable cause therefor caused the plaintiff to be arrested," etc.
The application is denied.
GARDNER, BOULDIN, and FOSTER, JJ., concur. *96