Davis v. Sanders , 133 Ala. 275 ( 1901 )

DOWDELL, J.

The complaint contained two counts, the first being in Code form (No. 19, p. 946, Code,) for false imprisonment; the second being the same, with additional averments of matters showing aggravation. Both counts are in trespass. — Ragsdale v. Bowles, 16 Ala. 62; Sheppard v. Furniss, 19 Ala. 760; Holly v. Carson, 39 Ala. 345; Rhodes v. King, 52 Ala. 272; Rich v. McInermy, 103 Ala. 345; 13 Ency. Pl. & Pr., 427, 428-9, note 1.

The amendment of the second count by the additional averment thiat “said charge before the commencement of this action has been judicially investigated and said prosecution ended and the plaintiff discharged,” did not change the character of the count from one in trespass for false imprisonment to one in case for malicious prosecution. As amended, it was still wanting in averments essential to constitute a count for malicious prosecution. An averment of the issuance of process, properly describing it, and the plaintiff’s arrest and imprisonment by virtue thereof, is essential in an action on the case for malicious prosecution. See authorities supra. The second count after amendment was wanting in such averment.

The court erred in refusing the second written charge requested by defendant.

The action being in trespass for false imprisonment, the character of the plaintiff ivas immaterial, and proof by him of his good ’character, his character not having been assailed, was wholly irrelevant under the issues, and the court, erred in allowing this evidence against the objection of the defendant.

For the errors pointed out, the judgment will be reversed and the cause remanded.