102 So. 133 | Ala. | 1924
The effect of a demurrer to the evidence is to admit every fact which the testimony establishes, or reasonably tends to establish.
"The court does not stand in the place of a jury, to render such a judgment as the jury ought to have rendered, but to render one against the defendant, if the jury, from the evidence, could legally have done so." Shaw v. White,
When the demurrer to the evidence was overruled, the liability of defendant, under any count of the complaint which stated a cause of action, was conclusively established, and the only issue for submission to the jury was as to the amount of damages to be awarded the plaintiff. Gluck v. Cox,
It is clear, however, that counts A and B of the complaint do not state a cause of action. This is not an action for breach of the garnishment bond, and hence the complaint must exhibit a common-law cause of action, as for a malicious prosecution, in order to authorize and support a recovery, which it fails to do.
The merely wrongful institution of a legal proceeding, whether civil or criminal, does not give rise to an action on the case for malicious prosecution, and is not an actionable wrong; the only compensation to which the defendant in such a case is entitled being a judgment in the proceeding itself for the costs of the suit incurred by him. McKeller v. Couch,
"If wrongful, but not malicious, no recovery can be had. If wrongful and malicious, but with probable cause, the action will fail. And if wrongful and without probable cause, and also without malice, no action can be maintained. There must, in other words, to authorize a recovery, be a concurrence of the three conditions — wrong, malice, and want of probable cause." Brown v. Master,
And in Benson v. McCoy,
"Since the Code [1852] an action on the case will not lie for suing out an attachment, unless it is sued out maliciously, and without probable cause, as well as wrongfully."
To the same effect is Lane v. Ala. Penny Sav. Bank,
A garnishment is a species of attachment (White v. Simpson,
When a complaint, or any of its several counts, does not state a cause of action, a general demurrer on that ground is sufficient to call attention to the defect, since the court should of its own motion deny any recovery thereon by the plaintiff; and, on appeal, this court will set aside a judgment based on such a complaint, even though the objection was not made in the court below. Pulliam v. Schimpf,
A demurrer to evidence cannot operate as a waiver of the insufficiency of a complaint to state a cause of action, nor invest it with capacity to support a judgment rendered thereon. U.S. Bank v. Smith, 11 Wheat. 171,
The only meritorious question to be reviewed, therefore, is whether the evidence before the court justified the finding — involved *235 in the overruling of the demurrer to the evidence — that the defendant McCarty was so connected with the issuance of the writ of garnishment as to render him legally responsible therefor; that is to say, whether the acts of T. S. Atkinson were the acts of McCarty himself, whether by virtue of express or implied authority in that behalf, or because they were done by Atkinson in the course of his employment as the agent or servant of McCarty.
The demurrer was of course directed to the evidence offered by plaintiff in support of his case, and the ruling on the demurrer must be tested by the sufficiency of that evidence, unaided by the testimony afterwards offered by defendant.
Our conclusion is that plaintiff's evidence was wholly insufficient to support a finding of fact, either that McCarty was the principal for whom the loan was made, or that he authorized Atkinson to collect the debt by resort to the process of garnishment. Even had the evidence tended to show that the loan was by McCarty, and that Atkinson was McCarty's agent for its collection, there would be no implied authority for Atkinson to sue out a writ of garnishment for a debt not legally subject to the writ; that is, for the unlawful use of legal process. Gambill v. Fuqua,
It results that the trial court erred in overruling the demurrer to the evidence, and the judgment will be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.
