73 Ala. 595 | Ala. | 1883
— Pleadings, in civil actions at common law,, are amendable at any time while the cause is in progress; at any time before the rendition of final judgment, for until then the proceedings are said to be in fieri. — McBrayer v. Cariker, 64 Ala. 50; Burkham v. Mastin, 54 Ala. 122. If the matter of the amendment is proper, the pendency of pleas
The original complaint contained three counts, each averring as the cause of action, the same tort, a malicious prosecution of the plaintiff for a criminal offense. The first and second counts averring the commencement of the prosecution before a justice of the peace, its continuance in the circuit court, by indictment presented by a grand jury, and the acquittal of - the plaintiff. The third is general, averring only the issue of the warrant by the justice, thé arrest and imprisonment of the plaintiff, and the determination of the prosecution by his discharge, describing the same offense as the subject of the prosecution. The amendment which was allowed was the insertion of two additional counts, and the striking out of the first count of the original complaint. The tort alleged in the additional counts is the same tort alleged in the original complaint- — it is not another distinct tort, and is not of consequence a different cause of action, or a new cause of action. The 'plaintiff could not, under the additional counts, offer evidence of any matter or ground of recovery, which was not within the cause of action stated in the original complaint. "Whether there was a necessity for the introduction of the counts, it is not necessary to consider. They were introduced, doubtless, to adapt the complaint to the various shapes or phases in which the pleader apprehended the evidence might present the case. Amendments of this character, working no other change than in the description of the cause of action, are admissible, so long as the identity of the matter upon which the.action is founded is preserved;
The. pleas in abatement are directed to the whole complaint; they profess to be in abatement of the action as an entirety; and not in abatement of one ór more of the several counts of the complaint. The rule applicable alike to pleas in abatement,
The -matter of the pleas is the pendency of a prior action between the same parties, for the same cause or matter, in a court of competent jurisdiction. The principle is well settled, that the pendency of a prior suit for the same thing, or, as is generally said, for the same cause of action, in a court of competent jurisdiction, between the same parties, will abate a later suit; because the latter is deemed unnecessary and vexatious. Bullock v. Perry, 2 St. & Port. 319; McCutchen v. McCutchen, 8 Port. 151; Gaston v. Parsons, Ib. 469; Dean v. Massey, 7 Ala. 601; Boswell v. Tunnell, 10 Ala. 958; Rood v. Eslava, 17 Ala. 430; Humphries v. Dawson., 38 Ala. 199. The reason of the principle is well expressed in the familiar maxim : “ Nemo debet bis vexari, si constet cioriie quod sit pro una et eadem causa.” The doctrine is thus stated in 1 Bac. Ah. 28, M.: “The lawT abhors multiplicity of actions; and, therefore, whenever it appears on record, that the plaintiff has sued out two writs against the same defendant, for the same thing, the second writ shall alíate; for if it were allowed that a man should be twice arrested, or twice attached by his goods for the same thing, by the same reason he might suffer m infinitum; and it is not necessary that both should be pending at the time of the defendant’s'pleading in abatement; for if there was a writ in being at the time of suing out, the second, it is plain the second was vexatious and ill ab initio.” It is the pendency of two suits for the same cause, their existence simul et semel, the law deems vexatious and discountenances. However meritorious may be the cause of action, it must not be employed for the purpose of Oppression; and when a defendant is twice impleaded by the same -plaintiff, for the same thing, the oppression and vexation is not matter of fact; it is a conclusion of law, and is not dependent upon an inquiry into the actual circumstances of the two cases. — Parker v. Colcord, 2 N. H. 36; Com. v. Churchill, 5 Mass. 174; Beach v. Norton, 8 Conn. 74; Frogg v. Long, 3 Dana, 157; Gamsby v. Ray, 52
The first suit was, like the second, an action on the case for a malicious prosecution of the plaintiff for a criminal offense ; the same offense in each complaint is averred or described as the subject of the prosecution, arid in each the prosecution is averred to have been commenced on the same day, before the same justice of the peace, and in each a termination of the prosecution, by the discharge or acquittal of the plaintiff, is averred. The difference in the averments of the two complaints is, that two of the counts of the second complaint aver that the prosecution was commenced before a justice of the peace, continued in the circuit court, and there terminated in an acquittal. And in another count, there is an omission of all reference to the proceedings before the justice of the peace, and an averment only of the prosecution by indictment in the circuit comí, and its termination.
It is apparent that both Suits grew out of the same transaction ; that the same tort, or wrongful act constitutes the substantial cause of action in each suit. According to the averments of the several complaints, the tort was complete, and there was the concurrence of every fact essential to the maintenance of the action. An action for malicious prosecution can be maintained only when three facts or things’ co-exist. 1. The prosecution must have been ended. 2. The termination must have been .an acquittal, or discharge of the plaintiff. 3. The charge must be proved to have- been made through malice, and without reasonable or probable cause to believe it true. The concurrence of these facts the complaint in each action avers. But it is insisted that, upon an inspection and comparison of the records, it. appears from the averments of the complaint in the second action, that the averment of the termination of the prosecution made in the first action is untrue in point of fact; that the prosecution was not ended, the cause of action had not accrued, and of consequence that action was premature, would have proved ineffectual, and is not pleadable in abatement of the second suit.
There are authorities,-to some of which we have been referred by the counsel for the appellee, holding that a prior suit which can not be made effective and available, is not pleadable in abatement of a second suit for the same cause. The doctrine is inconsistent with the English authorities, seems to have originated in the courts of Connecticut, and has been adopted by the courts of several States. The authorities were thoroughly considered, and the question ably discussed by the Supreme
The next contention is, that the second suit is for the prosecution in the circuit court, not for the prosecution before the justice, which must be regarded as the cause of action, or the matter of the first suit. The proceedings before the -justice were only initiatory of the prosecution; they were but the first step in the course of the proceedings, which make up the prosecution. True, if there had been a discharge of. the plaintiff by tlie justice, and no indictment subsequently preferred, the ■discharge would have been a termination of the prosecution, entitling the plaintiff to sue, if the prosecution was malicious and without probable couse. — 1 Am. Lead. Cases, 277. An indictment was subsequently preferred — it was but a continuation -of the prosecution commenced before the justice — it was not a new or distinct prosecution. As causes of action, torts are as indivisible as contracts. It is not permissible to separate
The result is, the circuit court erred ,in not overruling the demurrer to the pleas, and in not rendering judgment on the replication of nul tiel record, abating the action. As this result is decisive of the case, it is not necessary 'to consider the other questions raised by the assignments of error.
Be versed and remanded.