McDaniel v. Cain

48 So. 52, 159 Ala. 344, 1908 Ala. LEXIS 664

• Court: Supreme Court of Alabama
• Decided: November 19, 1908
• Status: Published

Opinion

ANDERSON, J.

The affidavit, as set out in the pleas, both before and after amendment, was not void, and said pleas were not subject to the demurrer interposed, as they related only to the false imprisonment counts of the complaint. The affidavit designated the offense as per the statutory caption, and was not void. The fact that an indictment similar to said affidavit would not be good against a demurrer did not render the said affidavit void.

The action of the trial court in sustaining the demurrer to the original complaint was clearly innocuous to the plaintiff, as he had to prove the very averment complained of in the demurrers in order to make out a prima facie case, which he did without dispute.

Conceding that the court erred in sustaining the demurrer to so much of the complaint as sought to recover counsel fees, the action in this respect ivas innocuous as the court properly disallowed a recovery by the plaintiff. He could clearly get no attorney’s fees if he did not show a right to recover anything.

It is true the testimony of Spencer, one of the owners of the land, showed that the defendant was a mere rental agent, rather than a tenant in chief, and that McDaniel was not his (Cain’s) tenant, and he therefore had no lien on the crops for said $20.24 advanced. There was also a judgment, from which the defendant took no appeal, adjudging that the cotton raised on the land was not subject to a landlord’s lien in favor of the defendant, Cain. This being true, the prosecution was wrongful, yet it was a question of fact as to whether or not it was maliciously instituted. — Goldstein v. Drysdale, 148 Ala. 42 South. 744; Alsop v. Lidden, 130 Ala. 548, 30 South. 401. The trial court, sitting as a jury, could -well infer from the evidence that the prosecution was not malicious. It was not disputed that the defendant advanced the sum claimed, and it is evident that he thought he had .a lien on the crop. It is true that ignorance of the law excuses no man for crime, or for an ordinary civil wrong; but in a civil action for malicious prosecution an honest belief in the existence of a right, though it does not in fact exist, may purge the prosecution of malice and defeat a recovery. The existence of malice being a question of fact, we are not prepared to hold that the court, sitting as a jury, erred in the conclusion reached.

The judgment of the circuit court is affirmed.

Affirmed.

Tyson, O. J., and Dowdell and McClellan, JJ., concur.