
    Deason v. Gray, Sheriff, et al.
    
    
      False Imprisonment.
    
    (Decided November 7, 1914.
    66 South. 646.)
    1. Bill of Exceptions; Presentation; Sigrwng; Time. — A bill of exceptions not signed within the time prescribed by Section 3910, Code 1907, will be stricken out on motion.
    2. False Imprisonment; Complaint; Sufficiency. — A complaint for false imprisonment which follows substantially the form prescribed by the Code, but which contains averments necessary for an action for malicious prosecution, but not necessary to a cause of action for false imprisonment, is good as against a demurrer not pointing out the defect.
    3. Pleading; Demurrer; Pointing Out Defects. — Under the provisions of Section 5340, Code 1907, defects in a complaint not pointed out by demurrer cannot be considered.
    4. Sheriffs and Constables; Action on Official Bond; Pleading.— In an action on the sheriff’s bond for official misconduct the complaint need not set out the bond, nor any of its conditions, since the bond is statutory, and questions of liability thereon are questions of law.
    5. Same. — Where the action is on a sheriff’s bond for an unlawful arrest and imprisonment by a named deputy sheriff, the complaint need not allege in terms that the sheriff was liable for the illegal and malicious acts of the deputy, as that is a question of law.
    6. Officers; Bonds; Liability of Surety. — The sureties on the official bonds of public officers are liable for an abuse by the officer or his deputy, acting in an official capacity, and within his authority and such bonds bind the principal and the surety for the use of every person injured in person or property by the wrongful act of the officer or his deputy committed under color of office.
    Appeal from Walker Circuit Court.
    Heard before Hon. J. J. Curtis.
    Action for false imprisonment by S. G. Deason against John M. Gray, as sheriff, and another, on his official bond. Prom a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    The complaint contained a number of counts, most of which were in Code form, and the facts of which sufficiently appear from the opinion. The judgment was rendered March 18, 1913, and the bill of exceptions is indorsed as having been tendered to the trial judge on June 17, 1913, 91 days after judgment rendered. Each count of the complaint alleges that the United States Fidelity and Guaranty Company is surety on the official bond of said John M. Gray, as sheriff of Walker county, Ala., and each count alleges either that the arrest was made by the sheriff, or by a named deputy of the sheriff, without probable cause, and without a warrant therefor, on the charge of using abusive language.
    F. A. Gamble, for appellant.
    Bat & Cooner, for appellee.
   MAYFIELD, J.

The bill of exceptions in this case must be stricken on appellees’ motion, because not signed within the time required by law. — Code, § 3019. The case must be reversed, however, because of rulings on the pleadings adverse to appellant — the sustaining of demurrers to several counts of the complaint.

It is difficult to understand upon what theory the trial court acted in sustaining demurrers to any one of the counts. They each substantially followed the Code form (Code 1907, vol. 2, p. 1198, form 19) for false imprisonment. The statute not only declares this form sufficient, but we have always held sufficient pleadings which substantially follow these forms. Some of these counts may be insufficient in some respects, but such defects were not pointed out by the demurrers, and we can consider only such as are specially assigned. — Code, § 5340. The only theory upon which the rulings of the trial court could be justified would be that the court treated the complaint and each count thereof as attempting to state a cause of action for malicious prosecution. The counts would be, of course, subject to some of the grounds of demurrer interposed, if they sought a recovery for malicious prosecution; but they were not subject to such grounds as for false imprisonment. Some of the counts contained averments appropriate to counts for malicious prosecution, but which were unnecessary in counts for false imprisonment; but no demurrer or motion was interposed which went to this defect. Each count stated a cause of action, at least for nominal damages, as for false impinsonment, against both the sheriff and his official bondsmen. It was not necessary to set out the bond, nor any of its conditions. The statutes prescribe these; and if the official bond was not such as the statutes prescribe, or if the defendant was not really surety on the sheriff’s bond, this was matter for special plea. The action was against the sheriff and the guaranty company, and it was alleged in each count that the guaranty company was surety on the official bond of the sheriff. The law says what the conditions are, and for what acts or faults or derelictions of the sheriff the surety on his official bond shall be liable. Hence these were questions of law, and not of fact, and were not necessary to be alleged.

- For the same reason, most, if not all, of the counts alleged that the unlawful arrest and imprisonment charged was had and done by a named deputy of the sheriff. The law makes the sheriff liable for certain official acts of the deputy, and for certain acts done under color of office or within the line and scope of the deputy’s authority; hence it was not necessary to allege in terms that the sheriff was liable for this alleged illegal and malicious act of the deputy. This was also a question of law, and need not have been alleged in the pleadings. If the facts alleged in any one of these counts were true, and on demurrer we must so treat them, both the defendants were liable because the law makes each so liable. This court has repeatedly decided that sureties on the official bonds of public officers, even those of justices of the peace, are liable for an abuse by the officer, or by his deputy, acting in an official capacity, and within the line and scope of his authority, in causing the arrest and imprisonment of a plaintiff without warrant and without probable cause. This court has also repeatedly decided that the legal effect of such official bonds as the one involved in this case is to make the bond obligatory on both the principal and the sureties, for the use of every person who is injured in person or estate by the wrongful act of the officer, or of his deputy, committed under color of office.—Coleman v. Roberts, 113 Ala. 323, 21 South. 449, 36 L. R. A. 84, 59 Am. St. Rep. Ill, and cases cited. The case of Kelly v. Moore, 51 Ala. 364, is the leading case on this subject, and it is there said: “ ‘Under color of his office,’ he arrests and imprisons the plaintiff. This was a misdemeanor at common law, and a tort for which an action could have been maintained against the justice. The sureties on his official bond would not, at common law, have been liable for this tort. The malfeasance of their principal, of which misfeasance could not also be predicated, was not within the scope of their obligation.—Governor v. Hancock, 2 Ala. 728; McElhaney v. Gilleland, 30 Ala. 183. This was deemed a defect in the common law, and to cure it the statute now extends the liability of sureties on official bonds to injuries from wrongful acts done by the officer under color of his office, as well as to the nonperformance or negligent performance of official duty. — R. C. § 169.”

Counts very similar to the ones in question were considered and construed by this court in the cases of Mitchell v. Gambill, 140 Ala. 545 37 South. 402, Gambill v. Schmuck, 131 Ala. 321, 31 South. 604, and Ragsdale v. Bowles, 16 Ala. 64; and it was there held that such counts were sufficient as for counts for false imprisonment, or unlawful arrest, though they would not be, as for malicious prosecution. As before stated some of the counts may have been subject to some technical defects; but they were not subject to any one pointed out in the demurrers, and each stated a cause of action, at least for nominal damages. We may add that we can see no possible good to come of having such a great number of counts in a complaint, when the facts are as simple and as few as they are in this case. One count will serve all the purposes that a hundred could; b.ut Ave cannot say that the error in this case was without injury, because the effect of the rulings of the trial court was to make the plaintiff allege facts not necessary to his recovery for false imprisonment, though they might be as for malicious prosecution. •

Por these errors, the judgment of the court below must be reversed, and the cause remanded.

Reversed and remanded.

Anderson. C. J., and McClellan and Gardner, JJ., concur.  