Pell City Manufacturing Co. v. Swearingen

47 So. 272 | Ala. | 1908

McCLELLAN, J.

Action for damages for false imprisonment. The judgment entry recites that all counts, save the seventh, were withdrawn by the plaintiff (appellee) that demurrers were sustained to plea 2 and overruled as to plea 3, and that issue was joined on plea 2. Plea 2 was the statute of limitation of 12 months, and plea 3 alleged the arrest to have been effected under void process. The stated contradiction apparent in the judgment entry is relieved by the bill of exceptions, from which it appears that plea 3, instead of plea 2, was the plea on which issue was taken; the plea not being subject to any of the grounds of demurrer assigned to- it. We feel compelled to remark that the confusion present in this record is inexcusable.

It is urged by appellee that the purported bill of exceptions does not appear affirmatively to have been signed by the presiding judge, so as to render it a part of the record. We entertain the contrary opinion. Over the signatures of the respective counsel this agreement appears in the record to have been in writing made and filed in the court below: “This cause having been tried and judgment rendered in favor of the pltintiff at the present term [italics supplied] of the court, and the defendant having given notice of its desire to prosecute an appeal from such judgment, it is hereby agreed by and between counsel for the plaintiff! and counsel for the defendant that the presiding judge may sign a bill of exceptions, so that the same may become a part of the record, both from the main trial and judgment and ruling of the court on the defendant’s motion for new trial, at any time within 80 days from the adjournment of this term of the court. This May 23, 1907.” The bill purports to have been signed by the presiding judge on the 3d day of June, 1907, a date within 30 days from the date of the copied agreement. It is hardly necessary, in view of the written agreement, to state that the writing shows on its face that it was executed and filed during the present (then pending) term of the court.

The affidavit and warrant, the testimony shows, were in the usual and proper form for prosecutions for trespass after warning, except that the warrant was made returnable to the “county court of St. Clair county at Pell City.” It was thought for upwards of a year that the county court of St. Clair county was being legally held at Pell City; but it was later pronounced by this court that the presumed authority therefor was invalid. It was prior to the judgment of this court, referred to, that the prosecution in question was instituted. If the process described in count 7 and set up in special plea of justification was valid on its face, issued by an officer having jurisdiction of the offense for that purpose, and returnable to a court of competent jurisdiction, those issuing the process or instigating it could not be liable in trespass for false imprisonment, whatever might be their liability in case for malicious prosecution. — Rhodes v. King, 52 Ala. 272.

The only point made against the process under which plaintiff was taken into custody is that the warrant was void because it was made returnable to the county court of St. Clair county at Pell City, a place whereat such court could not legally sit. In other words the expression “at Pell City” rendered the warrant void. The warrant was regular in all other respects, as was also the affidavit supporting it. The addenda of the words “at Pell City” after the direction of the return to the county court of St. Clair county, is mere surplusage. In legal fact the county court of St. Clair, while, of course, then existent, with jurisdiction of the offense imputed by the affidavit, could not lawfully sit at Pell City. As well might warrant have designated the city of Gadsden as the place whereat the county court of St. Clair would sit for the disposition of- the prosecution. The warrant was returnable to the court mentioned, and the place for its sitting was at the county seat, -so that whatever addenda the justice supplied as descriptive of another place was foreign to the process as certainly as if he had interpolated Birmingham as the place of trial. Hence the warrant was not void, but valid. The case of Relfe v. Valentine, 45 Ala. 286, is substantially in point. There the summons commanded the appearance of the defendant Relfe “at next term of the circuit court of Montgomery, to be held for said county, at the place of holding the same.” The summons was headed, “The State of Alabama,, Lowndes County.” The point urged against the summons was practically as here. The court said, in part: “The words “of Montgomery,’ in the Avrit, are mere surplusage. Their insertion is a mere irregularity, and they may be stricken out, without injury to the force of the precept.”

The testimony, without dispute, shows that the arrest Avas under valid process; and hence the affirmative charge Avas erroneously given for the plaintiff, hut should have been given for the defendant, The judgment is reversed and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Simpson and Denson, JJ., concur.