McNutt v. Abercrombie

84 So. 426, 17 Ala. App. 204, 1919 Ala. App. LEXIS 201

• Court: Alabama Court of Appeals
• Decided: October 21, 1919
• Docket: 6 Div. 565.
• Status: Published

Opinion

BRICKEN, J.

This was a suit by the appellee against appellant for malicious prosecution. The complaint originally consisted of one count, and later three additional counts, A, B, and C, were added by amendment. Demurrers to the original count were overruled, and demurrers were sustained as to count B and overruled as to counts A and C.

The defendant filed the plea of general issue, statute of limitations, and a plea setting up that the prosecution was instituted upon the advice of counsel.

The cause was tried upon counts 1, A, and O, and upon the above pleas of the defendant.

The court in its oral charge eliminated count A from the consideration of the jury, by charging them affirmatively that they could not find for the plaintiff on that count.

[1] The counts in the complaint were in the form prescribed by the Code, and were not subject to the demurrers interposed. Strain v. Irwin, 195 Ala. 414, 70 So. 734.

_There was no error in giving -charge A re-guested in writing by the plaintiff, which reads as follows:

“I charge you, gentlemen of the jury, that if you believe the evidence in this case, you cannot find for the .defendant under the second plea.” Birmingham Bottling Co. v. Morris, 193 Ala. 627, 69 South. 85.

[2] The court did not err in allowing the affidavit, warrant, and bond to be offered in evidence. Birmingham Bottling Works v. Morris, supra. Nor was there error in allowing the records in the county court- to be offered in evidence.

[3] There was no error in allowing the witness, plaintiff, to testify as to how many times he attended court, nor in allowing him to testify as to the expense incurred by him for hack hire in this connection, as these were claimed in the complaint as special damages.

[4] The ninth assignment of error is ás follows:

“The court erred in refusing to allow appellant to prove the feeling of appellee toward appellant (page 19).”

Upon referring to page 19 of the record, we find that ,T. T. Dancer, a witness for the plaintiff, was asked on cross-examination the following question:

“You were speaking about what you- heard McNutt say; you also informed him that the plaintiff, Mr. Abercrombie, had taken up a hammer and beat up part of that sawmill down there?”

The record then recites:

“Plaintiff objected to said question. Counsel for defendant states he wants to show the feeling of this man and what he tried to do to the property before he turned it over to him.”

The assignment of error is too vague to challenge this ruling of the court. Moreover, we are unable to see how an answer to the question could have shown the feeling of appellee toward appellant.

[5] There was no error in the action of the court in excluding the statement of the witness E. J. McNutt that the cut-off saw in controversy was included in the mortgage; but, if so, it was error without injury, as he was later allowed to testify fully as to whether the cut-off saw was part of the attachment to the mill that was included in the mortgage.

There was no error on the part of the court in refusing the several charges requested in writing by the appellant.

No error appearing, the judgment of the lower court is affirmed.

Affirmed. •