Holly v. Carson

Supreme Court of Alabama

Holly v. Carson

39 Ala. 345

CourtSupreme Court of Alabama

DecidedJanuary 15, 1864

StatusPublished

Cited by8 cases

This text of 39 Ala. 345 (Holly v. Carson) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Holly v. Carson, 39 Ala. 345 (Ala. 1864).

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Opinion

PHELAN, J.

The complaint in this case, though designed, no doubt, as an “ action on the case for a malicious prosecution,” and manifestly so considered and treated by the court below, is in fact a complaint in trespass. The form of complaint given in the Code at page 554, under the head “ For false imprisonment,” is the one adopted in this case; and this court has decided, in the case of Williams v. Ivey, (37 Ala. R. 244,) that such a complaint is in trespass, and not in case. To make it “case for a malicious prosecution,” it was necessary that it should have contained aver-ments — 1st, that the arrest was made under process; and, 2d, that the prosecution was ended and determined.—2 Chitty’s Pl. 206, and notes; Ragsdale v. Bowles, 16 Ala. 62. It contained neither.

[2.] In this view of the case, all the testimony introduced by the plaintiff,' showing the affidavit of defendant for plaintiff’s arrest, the warrant, and defendant’s arrest under it, and the giving of bond for his appearance to answer the charge of forgery, were irrelevant, and, had they been objected to, should have been excluded. Eor the same reason, the testimony of Wm. Davis, of what was said and done before the grand jury, on the charge of forgery made by defendant against the plaintiff; and the testimony of the witness Ganey, in relation to the calculation of interest on [347]*347the note in the civil suit between them, out of which the charge of forgery grew, being all irrelevant to the issue, and having been objected to by defendant, should have. been excluded by the court.

For this error, the judgment below is reversed, and the cause remanded~

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PHELAN, J.

The complaint in this case, though designed, no doubt, as an “ action on the case for a malicious prosecution,” and manifestly so considered and treated by the court below, is in fact a complaint in trespass. The form of complaint given in the Code at page 554, under the head “ For false imprisonment,” is the one adopted in this case; and this court has decided, in the case of Williams v. Ivey, (37 Ala. R. 244,) that such a complaint is in trespass, and not in case. To make it “case for a malicious prosecution,” it was necessary that it should have contained aver-ments — 1st, that the arrest was made under process; and, 2d, that the prosecution was ended and determined.—2 Chitty’s Pl. 206, and notes; Ragsdale v. Bowles, 16 Ala. 62. It contained neither.

[2.] In this view of the case, all the testimony introduced by the plaintiff,' showing the affidavit of defendant for plaintiff’s arrest, the warrant, and defendant’s arrest under it, and the giving of bond for his appearance to answer the charge of forgery, were irrelevant, and, had they been objected to, should have been excluded. Eor the same reason, the testimony of Wm. Davis, of what was said and done before the grand jury, on the charge of forgery made by defendant against the plaintiff; and the testimony of the witness Ganey, in relation to the calculation of interest on [347]*347the note in the civil suit between them, out of which the charge of forgery grew, being all irrelevant to the issue, and having been objected to by defendant, should have. been excluded by the court.

For this error, the judgment below is reversed, and the cause remanded~

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Bluebook (online)

39 Ala. 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holly-v-carson-ala-1864.

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