Strain v. Irwin, 70 So. 734

Strain v. Irwin

70 So. 734 | Ala. | 1915

SOMERVILLE, J.

(1-3) The first count of the complaint is in code form for malicious prosecution. Its allegation that the charge had been previously investigated and the prosecution ended by plaintiff’s discharge was sufficient, without alleging a judicial investigation. — Watson v. Cain, 171 Ala. 151, 54 South. 610. In such a count the claim for attorney’s fees as damages, being no part of the cause of action, and being intended only as a warning to the defendant.of an issue to be met, does not render the count demurrable, although it is not alleged that such a fee was either reasonable in amount or necessary in fact. These are questions of evidence merely. Nor do- the allegations that the warrant was issued by a justice of the peace of Morgan county, and that it was executed by a deputy sheriff of Lawrence county, show no cause of action on the face of the count. The arrest may have been authorized by proper indorsement on the warrant, as provided by section 6278 of the Code. If not, that *418fact was matter for defensive pleading and proof. The demurrers to this count are clearly without merit.

(4, 5) The second count is in code form for false imprisonment. It charges that defendant, maliciously-and without probable cause, caused “plaintiff to be illegally arrested on a charge of removing property upon which a mortgage existed, for-days, viz., on the 25th day of May, 1912.” An illegal arrest is both technically and in fact a false imprisonment, and the additional allegation of an imprisonment is not essential to the statement of a cause of action under Code, form 19, p. 1198. Nor is the prescribed allegation of the duration of the imprisonment other than directory, since it relates merely to the extent of the injury; and a momentary detention, if wrongful, gives a complete cause of action. — 19 Cyc. 325.

(6) The third count, though not following the code form, states a good cause of action for false imprisonment. — Sheppard v. Furniss, 19 Ala. 760, 764; Ragsdale v. Bowles, 16 Ala. 62.

(7) Each count charges an illegal arrest. Conceding that this would ordinarily be objectionable in a common-law count, as being a mere conclusion of the pleader, yet, the charge of illegality being unnecessary to show a prima facie cause of action, its form cannot render the count demurrable.

(8) It is not necessary to allege the place where, the manner in which, or the agent by whom, the arrest was made, nor that the defendant who caused it was present when it was made.

The second and third counts were sufficient as against the grounds of demurrer assigned.

Besides the general issue, defendant interposed two special pleas “for answer to plaintiff’s complaint and each count thereof.”

Plea 2 sets forth (1) the affidavit made by defendant before the justice, charging plaintiff was fraudulently selling or removing certain personal property of the value of $200 with knowledge of affiant's claim thereto under a written instrument; (2) the warrant of arrest issued therein, directed to any lawful officer of Morgan county, “on a charge of removing property upon which a mortgage existed;” and (3) the appearance bond taken from plaintiff by the arresting officer. It also alleges that the arrest was made by the officer acting on the information conveyed to him by the affidavit and warrant and by authority of *419law; and, further, that defendant did nothing towards having the warrant issued and plaintiff arrested other than the making of said affidavit, and that no more force was used than was necessary to effect plaintiff’s arrest.

(9-11) It is obvious that this plea is no answer to the first count for malicious prosecution. The gravamen of that action is a prosecution with malice and without probable cause, and if a valid prosecution proximately causes the arrest of the accused, whether the arrest itself is rightful or wrongful, and the accused is not convicted, the' action lies against him who was responsible for the prosecution. Moreover, all the allegations of this plea go merely to the general, issue. If defendant’s affidavit did not cause plaintiff’s prosecution and arrest on a valid and proper warrant, he was entitled to a verdict under his plea of not guilty, and, if there was no unnecessary abuse of plaintiff in arresting him, this would be material only in the estimation of damages.

(12, 13) As an answer to the second and third counts, in so far as this plea sets up justification under legal process or legally authorized action, it was unnecessary, in view of the allegation in each of those counts of an illegal arrest; plaintiff thereby anticipating the defense of justification, and assuming (unnecessarily, of course) the negative burden of proof, even on the general issue. And, in so far as it denies responsibility for the action of the justice and the sheriff it was of course a mere traverse of the complaint.

(14, 15) Plea 3 sets forth the same affidavit and warrant as shown by plea 1; and alleges that plaintiff was arrested under said warrant and made no objection at the time to being arrested, but voluntarily accompanied the officer and gave bail for his appearance, and, further, that defendant was not present at the time the warrant was issued, did not see it, and took no part in the arrest of plaintiff. This is no answer to the first count, and as to the second and third counts the matter alleged was available, if at all, under the general issue.

Plea 4 was interposed to the second and third counts only. It is substantially the same as plea 3, with the additional allegation that plaintiff was arrested under and by virtue of section 6269 of the Code of Alabama.

In view of the allegations of an illegal arrest in each count, of the complaint, justification by special plea was not necessary;. *420and the legality of plaintiff’s arrest, as well as the other matters set up in this plea, were all available to defendant under the general issue.

(16, 17) It results that, whatever view might be taken as to the merit of the defensive matter set up in the several special pleas in answer to counts 2 and 3, the elimination of these pleas on demurrer was not prejudicial to defendant, since it could have been shown just as well under the general issue. And, the contrary not appearing by a bill of exceptions, it must be presumed that defendant had the benefit of all defensive matter thus available. — Montgomery County v. Pruett, 175 Ala. 391, 57 South. 823.

We find no reversible error in the rulings on the pleadings, and, no other questions being presented by the record, the judgment must be affirmed.

Affirmed.

Anderson, C. J., and McClellan and Sayre, JJ., concur.