Kemp v. York

BROWN, P. J.

[1,2] On appeal from the inferior criminal court of Mobile to the circuit court, the trial is de novo on the merits, without regard to the judgment of the inferior court. Alford v. State ex rel. Attorney General, 170 Ala. 220, 54 South. 213, Ann. Cas. 1912C, 1093; Code 1907, §§ 6725, 6723. Such appeal vacates the judgment of the inferior court and destroys its effect as an estoppel. 3 Brickell’s Dig. 591, § 42; Freeman on Judgments, § 328; Abraham v. Alford, 64 Ala. 281; Harsh v. Heflin, 76 Ala. 499; Cofer v. Reinschmidt, 121 Ala. 252, 25 South. 769.

The averments of the plea, when construed in connection with the averments of the complaint, were affected with such uncertainty as to render it subject to the demurrers, which were properly sustained. If the judgment of the inferior court was admissible at all, it was only prima facie evidence of the existence of probable cause, and the plaintiff was not precluded by this judgment from showing a want of probable cause, by other competent evidence. Ewing v. Sanford, 19 Ala. 605; Hanchey v. Brunson, 175 Ala. 236, 56 South. 971, Ann. Cas. 1914C, 804.

The evidence on the issue presented by the defendant’s other special plea was in conflict, and the defendant was not entitled to the affirmative charge.

There is no reversible error in the record.

Affirmed.