Reach v. Quinn

Jan 19, 1909

Versions:48 So. 540

159 Ala. 340

1909 Ala. LEXIS 631

DOWDELL, J.

The first assignment of error goes to the ruling of the court below in sustaining a demurrer to the fourth count as amended. The minute entry incites that the demurrer to the fourth count as amended is sustained, but it nowhere appears from the record in what the amendment to the fourth count, consisted. In this state of the record, not knowing in what the amendment consisted, we cannot review the court’s action.

The fifth count, whether intended as a count in case for a malicious prosecution or as a count in trespass for false imprisonment, was in either aspect faulty, and subject to the demurrer interposed. As a count in case for malicious prosecution, it is faulty in omitting to aver the issuance of process. — Davis v. Sanders, 133 Ala. 275, 32 South. 499, and authorities there cited. As a count in trespass for false imprisonment, it fails to aver that the defendant was arrested and imprisoned,’or caused to be arrested and imprisoned, the plaintiff. Manifestly it was intended by the pleader as a count’in case for malicious prosecution, since it contains all of the necessary averments of such a complaint (form 20, Code 1896, p. 947, c. 91), except the averment of the issuance of the warrant.

*343There was no error in excluding the warrant offered in evidence. Section 5208 of the Criminal Code of 1896, in reference to warrants, provides, among other things: “And the Avarrant must be signed by the magistrate, Avith his name and initials of office, or the same must in some Avay appear from the Avarrant.” The statute in the latter clause of the foregoing extract seems to emphasize the requirement as to the signature of the officer and the initials of his office appearing on the Avarrant in order to give it validity. The Avarrant offered in evidence was signed by “J. W. Jones” as an individual, and not in any official character, • or Avith the initials of his office, and this noAvhere appeared on the AArarrant. It is no ansAver in such case to say that the courts judicially know who are justices of the peace. This would be true if J. W. Jones had signed the warrant in his official character, by designating himself as such officer by the initials of his office, or letting that fact someAvhere appear on the Avarrant- We cannot judicially know that there is but one J. W. Jones, and hence Avhen J. W. Jones signs a paper as an individual, without more, Ave cannot judicially know that he is a particular officer. We do not think that the paper can be aided as to its validity by parol evidence of the fact that the J. W. Jones who signed it was a justice of the peace. The Avarrant should be valid on its face to justify the officer in executing it. In this connection, see Oates v. Bullock, 136 Ala. 537, 33 South. 835, 96 Am. St. Rep. 38.

We find no reversible error in the record, and the judgment appealed from will be affirmed.

Affirmed.

Simpson, Anderson, and McClellan, JJ., concur.