Opinion
6 Div. 227.
October 23, 1924. Rehearing Denied November 27, 1924.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
Matthews Morrow, of Birmingham, for appellant.
A demurrer to the evidence should be sustained, where plaintiff's testimony is wholly insufficient to prove the material allegations of his complaint, or where no evidence is introduced tending to prove the cause of action. 38 Cyc. 1547; N. O. R. R. Co. v. Enochs, 42 Miss. 603; Milliken v. Thyson Comm. Co., 202 Mo. 637, 100 S.W. 604; Loeffler v. West Tampa, 55 Fla. 276, 46 So. 426; Ellis v. Flaherty, 65 Kan. 621, 70 P. 586; Lyons v. Terre Haute R. Co., 101 Ind. 419; Bates' Adm'r v. Bates, 33 Ala. 102. When demurrer to evidence is interposed by defendant, and issue joined, the court should render judgment against him, if the jury could legally have found a verdict. Armstrong's Ex'rs v. Armstrong's Heirs, 29 Ala. 538; Donaldsons Adm'r v. Waters' Admr, 30 Ala. 175. The complaint, not being upon the garnishment bond, is bad for failure to aver wrongful suing out, malice, and want of probable cause. Lane v. Ala. Penny Sav. Bank, 185 Ala. 656, 64 So. 608; Brown v. Master, 104 Ala. 464, 16 So. 443; Tucker v. Adams, 52 Ala. 254; Benson v. McCoy, 36 Ala. 710; Goldstein v. Drysdale, 148 Ala. 486, 42 So. 744; Dudley v. Stansberry, 5 Ala. App. 491, 59 So. 379; Dickerson v. Schwabacher, 177 Ala. 371, 58 So. 986.
Beatty, Messer Royall, of Birmingham, for appellee.
As to the effect of demurrer to evidence, see Code 1907, § 5343; Dearing v. Smith, 4 Ala. 436. The demurrer to the complaint was general, and not sufficient. Code 1907, § 5340; Robbins v. Mendenhall, 35 Ala. 722. The complaint is sufficient. The word "wrongful," as therein used, includes malice and want of probable cause. Code 1907, § 4303; Pounds v. Hamner, 57 Ala. 346; 28 C. J. 542.
The effect of a demurrer to the evidence is to admit every fact which the testimony establishes, or reasonably tends to establish.
"The court does not stand in the place of a jury, to render such a judgment as the jury ought to have rendered, but to render one against the defendant, if the jury, from the evidence, could legally have done so." Shaw v. White, 28 Ala. 637, 640; Bates' Adm'r v. Bates, 33 Ala. 102.
When the demurrer to the evidence was overruled, the liability of defendant, under any count of the complaint which stated a cause of action, was conclusively established, and the only issue for submission to the jury was as to the amount of damages to be awarded the plaintiff. Gluck v. Cox, 90 Ala. 331, 8 So. 161; Maund v. Loeb, 87 Ala. 374, 6 So. 376. The trial court did not err in following this procedure.
It is clear, however, that counts A and B of the complaint do not state a cause of action. This is not an action for breach of the garnishment bond, and hence the complaint must exhibit a common-law cause of action, as for a malicious prosecution, in order to authorize and support a recovery, which it fails to do.
The merely wrongful institution of a legal proceeding, whether civil or criminal, does not give rise to an action on the case for malicious prosecution, and is not an actionable wrong; the only compensation to which the defendant in such a case is entitled being a judgment in the proceeding itself for the costs of the suit incurred by him. McKeller v. Couch, 34 Ala. 336, 341; Tucker v. Adams, 52 Ala. 254, 256.
"If wrongful, but not malicious, no recovery can be had. If wrongful and malicious, but with probable cause, the action will fail. And if wrongful and without probable cause, and also without malice, no action can be maintained. There must, in other words, to authorize a recovery, be a concurrence of the three conditions — wrong, malice, and want of probable cause." Brown v. Master, 104 Ala. 451, 463, 16 So. 443, 447.
And in Benson v. McCoy, 36 Ala. 710, 711 (1860) it was said that —
"Since the Code [1852] an action on the case will not lie for suing out an attachment, unless it is sued out maliciously, and without probable cause, as well as wrongfully."
To the same effect is Lane v. Ala. Penny Sav. Bank, 185 Ala. 656, 64 So. 608.
A garnishment is a species of attachment (White v. Simpson, 107 Ala. 386, 18 So. 151), and as a basis for an action on the bond, or an action on the case for malicious prosecution, it requires the same elements of misconduct that an attachment requires. Goldstein v. Nobles, 198 Ala. 430, 73 So. 822.
When a complaint, or any of its several counts, does not state a cause of action, a general demurrer on that ground is sufficient to call attention to the defect, since the court should of its own motion deny any recovery thereon by the plaintiff; and, on appeal, this court will set aside a judgment based on such a complaint, even though the objection was not made in the court below. Pulliam v. Schimpf, 109 Ala. 179, 182, 19 So. 428; C. of G. Ry. Co. v. Gross, 192 Ala. 354, 361, 68 So. 291.
A demurrer to evidence cannot operate as a waiver of the insufficiency of a complaint to state a cause of action, nor invest it with capacity to support a judgment rendered thereon. U.S. Bank v. Smith, 11 Wheat. 171, 6 L.Ed. 443; McLean v. Associated Society, 100 Ind. 127, 50 Am. Rep. 779. It results, therefore, that the trial judge erred in submitting counts A and B to the jury, and authorizing a recovery by plaintiff of the damages claimed therein. But the error was technical only, since count C sufficiently stated a cause of action in malicious prosecution (Brown v. Master, 104 Ala. 451, 3d headnote, 16 So. 443), and claimed all of the special damages claimed in the other counts, so that the instructions and the finding as to damages would, or should, have been the same, though counts A and B had been eliminated and disregarded.
The only meritorious question to be reviewed, therefore, is whether the evidence before the court justified the finding — involved in the overruling of the demurrer to the evidence — that the defendant McCarty was so connected with the issuance of the writ of garnishment as to render him legally responsible therefor; that is to say, whether the acts of T. S. Atkinson were the acts of McCarty himself, whether by virtue of express or implied authority in that behalf, or because they were done by Atkinson in the course of his employment as the agent or servant of McCarty.
The demurrer was of course directed to the evidence offered by plaintiff in support of his case, and the ruling on the demurrer must be tested by the sufficiency of that evidence, unaided by the testimony afterwards offered by defendant.
Our conclusion is that plaintiff's evidence was wholly insufficient to support a finding of fact, either that McCarty was the principal for whom the loan was made, or that he authorized Atkinson to collect the debt by resort to the process of garnishment. Even had the evidence tended to show that the loan was by McCarty, and that Atkinson was McCarty's agent for its collection, there would be no implied authority for Atkinson to sue out a writ of garnishment for a debt not legally subject to the writ; that is, for the unlawful use of legal process. Gambill v. Fuqua, 148 Ala. 448, 456, 42 So. 735; 2 Corp. Jur. 578, § 219.
It results that the trial court erred in overruling the demurrer to the evidence, and the judgment will be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.