Sugar Valley Land Co. v. Johnson
85 So. 871
Ala. Ct. App.
1920
Check Treatment
SAMFORD, J.

[1, 2] Count 5 of the complaint followed the form prescribed in the Code dnd was not subject to demurrer. The eleventh and thirteenth counts of the complaint claimed damages for the malicious suing out of a search warrant. The counts did not allege that the charge, before the commencement of this suit, had been judicially investigated and the prosecution ended, and plaintiff discharged, but this point was not taken by demurrer. The demurrer as filed to counts 11 and 13 was properly overruled. Code 1907, § 5340.

[3] The plaintiff’s counsel, over the timely objection and exception of defendant, was permitted to ask plaintiff, testifying as a witness, “What effect did keeping your tools have on your work?” and when answered, “A lot of fittings belonged to my pump, and I wanted to use them,” defendant moved to exclude the answer, which motion the court overruled, and the defendant excepted. The grounds of objection to the question and answer were set out. Damages arising out of plaintiff’s inability to use a pump on account of the trespass complained of — i. e., the seizure of certain fittings — -are too remote and speculative to be recovered in this action. Nelms v. Hill, 85 Ala. 583, 5 South. 344; Street v. Sinclair, 71 Ala. 110. Nor are such damages recoverable under the counts charging malicious prosecution.

[4] After considering this entire re'cord, we cannot say that this was error without injury, under rule 45 of the Supreme Court (61 South, ix 1 ). In cases like this, embracing charges and counter charges involving moral turpitude and malice, the results of trials are often affected by erroneous rulings, when, if the issues and contentions were different, the rulings might be without injury, though more glaringly erroneous.

[5] Under the authority of Ex parte Cowart, 201 Ala. 55, 77 South. 349, the exceptions to the several parts of the court’s oral charge were properly reserved, and here presented.

[6] Exemplary or punitive damages are recoverable in actions for trespass, when the acts complained of are attended with aggravating circumstances of wantonness or malice. Coleman v. Pepper, 159 Ala. 310, 49 South. 310; Friedenthal v. Goodloe, 202 Ala. 611, 81 South. 553. But punitive damages are not recoverable as a matter of right. As was said in the Coleman Case, supra:

“Their imposition is discretionary with the-jury; * * * and this discretion is not an unbridled or arbitrary one, but a legal, sound, and honest discretion.”

The effect of the court’s oral charge was to instruct the jury that, if a trespass had been committed on plaintiff’s goods, plaintiff would be entitled to recover, not only actual damages, but exemplary damages, as a matter of right growing out of the trespass. This was error. It is only where the trespass is attended by rudeness, wantonness, recklessness, or in an insulting manner, or is accompanied by circumstances of fraud and malice, oppression, aggravation, or gross negligence, that the jury is warranted in assessing exemplary damages in an action for trespass. Lienkauf v. Morris, 66 Ala. 406.

[7] The authority of an officer to search is “named within the four corners of the paper issued by the county court,” as charged by the court, so far as the place to be searched and the time and manner of the execution of the warrant is concerned; but if, while' making the search, the officer come upon property belonging to the claimant that has been stolen, and he seizes that also, he would not thereby be guilty of a trespass on the goods of the plaintiff, who admittedly had no right to the title or possession. Those parts of the general charge in conflict with the-foregoing were error.

[8] Search warrants are criminal processes, issued under the police power of the state, to aid in the detection or suppression of crime, and have no relation to civil process or trials. Murray v. Hoboken Land Company, 18 How. 272, 15 L. Ed. 372; State v. Derry, 171 Ind. 18, 85 N. E. 765, 131 Am. St. Rep. 237. They are, therefore, collateral to .criminal prosecutions, although no direct criminal charge may ever in fact be brought against the party in whose possession the personal property may be found. The primary purpose of the search is to obtain evidence to be used in a criminal prosecution to maintain the peace and dignity of the state. Chipman v. Bates, 15 Vt. 51, 14 Am. Dec. 663.

“When, however, the property has been taken by a search warrant from the possession of a person, and there is a controversy between him and the person from whom it is claimed that the property was stolen, as to which has-a right to it, a question is presented that cannot be determined on a criminal process, but must he determined in a civil action. Ordinarily, a finding in a search warrant proceeding is not conclusive as to the ownership of the property; but where rival claimants appear, employ counsel, and submit the question of ownership on testimony adduced pro and con, the finding is conclusive, although, strictly speaking, they are not parties to the action.”" 24 R. O. L. p. 724, § 28.

The foregoing method of procedure seems to be carried out and approved in Code 1907, *413 §§ 7771, 7772. This is an entirely different inquiry to that authorized by Code 1907, § 7770, and hence the views here expressed are not in conflict with the opinion in the case of Southern Hardware, etc., Co. v. Lester, 166 Ala. 80, 52 South. 328.

[9-12] Upon the trial of this case, the plaintiff offered in evidence what was claimed to be the judgment of the magistrate who tried the issues on the search warrant process under sections 7771 and 7772 of the Code of 1907, which appeared written on the back of the sheriff’s return, and was in words and figures as follows:

“The property is ordered restored to defendant and warrant is dismissed. L. L. Herzberg, Judge of County Court. 9 — 26—18.”

But it nowhere appears that the magistrate followed, or even attempted to follow, the requirements of section 7771 as to hearing the testimony and reducing it to writing. The most that can be said for the entry is that it is evidence that a judgment was ordered, but it does not rise to the dignity of a judgment. In re Weber, 4 N. D. 119, 59 N. W. 523, 28 L. R. A. 621; Durant v. Comegys, 3 Idaho (Hasb.) 67, 26 Pac. 755, 35 Am. St. Rep. 267. A judgment should be complete and certain in itself, and must appear to be the act and adjudication of the court, and not a mere memorandum of the court’s action. Bell v. Otts, 101 Ala. 186, 13 South. 43, 46 Am. St. Rep. 117; Tombeckbee Bank v. Godbold, 3 Stew. 240, 20 Am. Dec. 80; Hinson v. Wall, 20 Ala. 298. The actual and final judgment of the magistrate was his announcement of his finding, and not the writing. Rowe v. Arrington, 1 Ala. App. 633, 56 South. 8. There being no formal memorial of this finding, parol evidence was admissible to show what articles were actually adjudicated to belong to plaintiff. Tarleton v. Johnson, 25 Ala. 300, 60 Am. Dec. 515. This evidence was also admissible to show that the search warrant proceedings had been finally determined as referred to the counts claiming for malicious prosecution.

[13] The question as to whether the defendants had instituted the search warrant proceedings upon the advice of counsel, after a full and fair statement of the facts, was, under the facts of this case, .one for the jury. So, also, was the question as to whether both of these defendants were jointly liable. The questions likely to arise upon another trial, not hereinbefore discussed, are governed by the case of Gulsby v. L. & N. R. R. Co., 167 Ala. 122, 52 South. 392, which the trial court can use as a guide in determining the rights of the parties under the counts charging malicious prosecution.

For the errors pointed out, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Notes

1

175 Ala. xxi.