Lane v. Alabama Penny Savings Bank

64 So. 608, 185 Ala. 656, 1914 Ala. LEXIS 114

Opinion

McCLELLAN, j.

The only questions presented are the propriety of the court’s action in sustaining demurrers to counts 3, 4, and 5 of the amended complaint. The best of these counts avers, at most, the wrongful causing or procuring the issuance of a writ of attachment against plaintiff’s property as the result of a false and fraudulent affidavit, and the allegation of damage in consequence. This action is not on the attachment bond.

In order to sufficiently assert an action on the ease for a Avrong inflicted by recourse to legal process of the character described in the complaint, these conditions must be averred to have concurred to cause the damage claimed, viz., malice and want of probable cause.— Brown v. Master, 104 Ala. 464, 16 South. 443; Tucker v. Adams, 52 Ala. 254; Benson v. McCoy, 36 Ala. 710.

The cases relied on by appellant, viz., Kirksey v. Jones, 7 Ala. 622, Gilmer v. Wier, 8 Ala. 72, Seay v. Greenwood, 21 Ala. 491, Avere pronouncements immediately affected by the statute of 1837 — a statute that was subsequently repealed. The case of Dickson v. Bachelder, 21 Ala. 699-705, appears to have been an action on the attachment bond.

The' trial court followed the doctrine of the later decisions, which were not controlled by the statute of 1837; and, in so doing, committed no reversible error in sustaining the demurrers to the counts mentioned.

The judgment is affirmed.

Affirmed.

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