This is an action for damages instituted by the appellant against the appellees. The demurrer of the defendants being sustained, the plaintiff took a nonsuit because of the adverse ruling thus made.
Omitting only the formal parts, the single count of the complaint is in these words:
"That defendants, maliciously and without probable cause, and for the purpose of damaging and harassing plaintiff, procured a bill of complaint to be filed against plaintiff in the chancery court of Lauderdale county, Ala., on the 8th day of March, 1912, the style of said cause being W. M. Gray, L. H. Springer, Tom Putnam, R. L. Springer, J. W. Gladney, Robert Killen, A. T. Davis, C. T. Wright and W. M. Neely, complainants, against J. M. Peerson, defendant. That defendants wrongfully, maliciously and without probable cause procured the issuance of process against this plaintiff as prayed for in said bill of complaint, requiring plaintiff to appear and answer said complaint. The defendants maliciously and without probable cause, and with intent to injure plaintiff, did hire, persuade or procure the said complainants in said bill of complaint to permit the defendant's attorneys to file said bill of complaint in their names against plaintiff, well knowing that said complainants had no cause of action against this plaintiff. That said attorneys, who in fact were the attorneys for defendants Ashcraft Cotton Mills and C. W. Ashcraft, but who appear in said bill of complaint as the solicitors for said W. M. Gray et al., falsely, maliciously and without probable cause alleged in said bill of complaint, among other things, that this defendant had defrauded the complainants therein and the other stockholders of the Lauderdale County Farmers' Union Warehouse Company out of their property and undertook therein to have the court cancel plaintiff's title to said property known as block 494 in Florence, Ala., on the ground of fraud. Plaintiff avers that at the time of the filing of said bill of complaint in said chancery court he was interested in a gin and oil business located on said block 494, which said business was in competition with the business being operated by the defendants herein, and that the purpose of defendants in procuring the filing of said bill of complaint and in the prosecution thereof in said chancery court was to destroy competition and to damage plaintiff in his business. That plaintiff was required to and did answer said complaint in said chancery court, and that said cause was duly submitted to the chancellor of said court, the Hon. W. H. Simpson, and that said court on the 15th day of July, 1914, rendered a decree in said cause decreeing that the complainants therein were not entitled to relief and dismissing said bill of complaint. That in defending said pretended cause of action so maliciously begun and prosecuted plaintiff was compelled to and did employ *Page 350 counsel, and that the services rendered by his attorney therein was of the reasonable value of $1,000, which sum is specially claimed as damages in this cause. And plaintiff avers that because of the prosecution of said chancery suit as aforesaid he has suffered great loss of time and expended large sums of money other than his attorney's fees in making his defense to said malicious prosecution, and that he has been damaged in the sum aforesaid."
At the risk of at least a degree of repetition, an analysis of the count seems to be desirable. In analyzing the count, for the purpose of determining its sufficiency on demurrer, the count must be construed most strongly against the pleader. Zavello v. Reeves, 171 Ala. 401, 54 So. 654; 10 Michie's Dig. Ala. Rep. p. 1005. It is averred that Gladney and others were the complainants and J. M. Peerson (plaintiff in the present action) the defendant in the chancery cause mentioned in the complaint. It appears from the count that neither the Ashcraft Cotton Mills, a corporation, nor C. W. Ashcraft — the defendants in the present action — were parties to the chancery cause instituted by Gladney and others against Peerson. It also appears that the wrong sought to be remedied in the chancery cause was an alleged fraud against the complainants in that cause, and not against the defendants in this action, viz. Ashcraft Cotton Mills and C. W. Ashcraft. It also appears from the count that the subject-matter of the chancery cause, to which the defendants in the present action were not parties, was a lot in Florence, Ala., Peerson's title to which, it was alleged in the chancery cause, was obtained through fraud practiced upon Gladney and others. It also appears from the count that the solicitors representing Gladney and others in the chancery cause were "in fact * * * the attorneys for the defendants" in the present action; that these attorneys (not the defendants in the present action, it is to be noted) "falsely, maliciously and without probable cause" alleged in the bill Peerson's fraud in procuring title to the lot described; and that the defendants in the present action "maliciously and without probable cause and with intent to injure" Peerson "did hire, persuade or procure" Gladney and others "to permit the defendant's [Ashcraft Cotton Mills and C. W. Ashcraft] attorneys to file said bill of complaint in their names against the plaintiff [Peerson], well knowing that said complainants had no cause of action against this plaintiff"; but, notwithstanding this averment that these attorneys were the attorneys of these defendants, it is later alleged in the count that the defending attorneys were employed by said Peerson. It is also averred that the motive, the purpose inspiring the defendants in the present cause was to damage or destroy Peerson's business which was in competition to the business of the defendants in the present action. It is also alleged that the hearing in the chancery cause resulted in a final decree against Gladney and others and in favor of the present plaintiff, Peerson; and in consequence of the necessary defense of the chancery cause Peerson suffered damages, among other things, the expense of his solicitors in the chancery cause. It is to be observed that there is no claim of damages as to Peerson's business.
It is to be seen that the general theory of actionable wrong which the count would assert is this: That a corporation and an individual maliciously and without probable cause instigated third persons to institute a groundless civil cause against the plaintiff in the present action, such instigators being strangers in interest to the subject-matter of the groundless civil cause to institute which they, with wrongful motive and purpose, moved complainants Gladney and others. Whether the count efficiently set forth a cause of action in the circumstances disclosed by the averments of the count, as against grounds of the demurrer interposed, was the question submitted to and decided by the trial court, and is the question to be reviewed here. In Reynolds v. Carter, 32 Ala. 445,446, this court, through approving quotation, said:
"In the opinion in Perren v. Bud, Cro. Eliz. 794, which has been followed in the subsequent cases, it is said: 'If one procures another to sue me without cause, an action lies not against him who sued without cause, but for this falsity in procuring my vexation an action well lies.' In Savil v. Roberts, 1 Salkeld, 13, we find a similar statement of the law, in the following words: 'If one that is not concerned, as a stranger, procure another to sue me causelessly, I may maintain an action against him generally.' We cite several authorities, which maintain the same proposition, and discuss generally the subject of actions to recover damages resulting from vexatious suits."
Among others, the demurrer to the complaint contained ground 6, which reads:
"For aught that appears by the complaint said complainants [i. e., Gladney and others] in said chancery suit had probable cause to believe that Gladney and others had a valid right of action against said J. M. Peerson."
The objection taken by the quoted ground of demurrer was due to be sustained. In Reynolds v. Carter, supra, this court noted Flight v. Leman, 4 Ad. El.; s. c., 45 E. C. L. 883. The complaint considered by the court in Flight v. Leman assumed to set forth a cause of action similar to that here declared on. There, it was alleged, Leman had unlawfully and maliciously instigated and procured Thomas to commence and prosecute a false action of trespass on the case against Flight and others, "intending to injure, harass and damnify" Flight, which action resulted in a judgment favorable to Flight and his codefendants. It was held that the complaint was defective because of the omission to aver therein that the institution of the action of trespass on the case was without probable cause therefor.
It is not improper to note at this point that during the argument of Barstow, counsel *Page 351 for the plaintiff, Justice Coleridge propounded this question:
"Suppose I know of a defect in your title to land, and even from malice to you inform the legal owner; is that actionable?"
The response of the counsel was this:
"That might be actionable or not under the peculiar circumstances of the case."
That a lawful act is not made actionable by the malevolence of the intent with which it is done has been decided here in Sparks v. McCreary, 156 Ala. 382, 387, 388, 47 So. 332, 22 L.R.A. (N.S.) 1224. The opinions of the members of the court on the objection taken by special demurrer, that the complaint in Flight v. Leman should have negatived the existence of probable cause for the institution of the original action of trespass on the case, are brief and apt, and may be conveniently quoted:
"Lord Denman, C. J. The case of Pechell v. Watson proceeded on the principle that to maintain an action already commenced was unlawful. That is not here charged; and therefore the count ought to show the ingredients which make the instigation to a suit actionable. The plaintiff has not done this; for, beyond all doubt, the absence of reasonable or probable cause is one such ingredient, in the absence of which it does not appear that the plaintiff has been unlawfully disturbed.
"Patteson, J. I think this declaration is bad, for the reason already given. The case is analogous to that of a complaint of malicious prosecution or arrest; and here, as there, the want of reasonable or probable cause ought to be alleged.
"Williams, J. The averments in this declaration might be sustained by proof that the defendant, not being an attorney, had held a conversation with Thomas, and had said, 'If your story is correct, you might sue Flight.' No action could be maintained on that, unless it further appeared that the now defendant knew that there was no right to sue the now plaintiff.
"Coleridge, J. It is not asserted here that the suit maintained was without reasonable or probable cause; there are only general words, imputing an instigation and stirring up. There should be added to these, in strict analogy with actions for malicious prosecution or arrest, as my Brother Patteson has pointed out, an averment of want of reasonable or probable cause; and without such averment this declaration shows no right of action."
The count in the present instance does not allege the absence of probable cause for instituting the suit, the institution of which by Gladney and others is the pith of Peerson's complaint. It is averred that the Ashcraft Cotton Mills and C. W. Ashcraft maliciously and without probable cause procured Gladney and others to institute the chancery cause against Peerson, and that the present defendants well knew that Gladney and others had no cause of action against the plaintiff; but neither of these averments, nor both concurring, affirm the absence of probable cause for the institution of the chancery cause. If the count had affirmed that the present defendants knew, when maliciously instigating Gladney and others to institute the cause, that there was no probable cause for instituting the chancery cause to remedy the wrong asserted in the chancery cause, the complaint would have avoided the fault pointed out in the sixth ground of the demurrer. One may, in point of fact, have no cause of action against another, and, notwithstanding, may have probable cause to justify his impleading another to vindicate a conceived right or redress a wrong. The averment that the defendants in the present action "maliciously and without probable cause" procured or instigated or hired Gladney and others to institute the chancery cause is not the equivalent, as appears, of an allegation that the chancery cause had not the support of probable cause to justify the institution of the chancery cause. Manifestly, if there was probable cause to justify the institution of the chancery cause against Peerson, the ascertainment and adjudication of that fact would defeat the cause of action this plaintiff would assert, notwithstanding these defendants entertained malice in instigating Gladney and others to implead this plaintiff. When referred to the fifth ground of demurrer, like considerations justified the ruling of the trial court in sustaining the demurrer. That ground reads:
5. It does not appear by said complaint but that defendants had probable cause to believe that said Gladney et al. had a valid cause of action against said J. M. Peerson.
The probable cause, the existence of which is negatived by the averments of the count, is restricted to the act or process of instigating Gladney and others to institute the chancery cause, and does not affirm the absence of probable cause for instituting the chancery cause. Since demurrer is not the proper method to question the right to recover damages improperly claimed (4 Michie's Dig. Ala. Rep. p. 668), the court could not have been justified in sustaining the eighth and ninth grounds of demurrer which were predicated of the reference in the count to the charge of fraud, on the part of Peerson, asserted in the bill in the chancery cause; that averment in the count under consideration being, at best, only referable, if of any effect, to the measure of the recovery, and not to the right to maintain the action for the wrong sought to be declared on.
Several grounds of demurrer seek to invoke the application, in this jurisdiction, of the doctrine prevailing in some jurisdictions and denied in still others, that an action for damages will not lie for the institution, maliciously and without probable cause, of a civil action commenced by summons only, whereby no restraint of the person or seizure of property is effected. Reference to Judge Freeman's note to McCormack Harvesting Co. v. Willan, 93 Am. St. Rep. 454 et seq., 1 Cooley on Torts, p. 349 et seq., 18 R. C. L. pp. 13, 14, and annotations, will disclose the irreconcilable conflict in which the decisions on the subject now rest. The question is said to be, and undoubtedly is, an open one in this jurisdiction. The nearest approach to a consideration *Page 352 of the question by this court may be found in Reynolds v. Carter, 32 Ala. 444. There Reynolds, as administrator, had sued Carter in detinue, took a nonsuit, and judgment for cost de bonis intestatis was rendered against Reynolds. Execution, pursuant to the judgment, was issued and returned nulla bona. Then an execution was issued to be satisfied out of the goods of Reynolds individually (de bonis propriis). Thereupon Reynolds filed his bill to enjoin the enforcement of the execution against him as an individual. The ground of the bill was that subsequent to the rendition of the judgment de bonis intestatis, the estate of Reynolds' intestate was declared insolvent by a proper court. The court denied the equity of Reynolds' bill to enjoin the enforcement of the execution against him personally, and so because of the liability of Reynolds individually for maliciously and without probable cause instituting, in his representative capacity, the action of detinue against Carter; the court applying to this status the doctrine of the quotations hereinabove reproduced from the case of Perren v. Bud and Savil v. Roberts. In concluding the opinion this court said in Reynolds v. Carter:
"For the reasons above set forth, we decide that the complainant is responsible to the defendant for the damages caused to the latter by the action at law. The execution for the costs of the action at law was returned 'No property found,' and therefore the defendant has sustained damage,to the amount of his costs, and the complainant should not be relieved from the payment of the judgment for that amount, which, by virtue of the return of nulla bona, the defendant has against him." (Italics supplied.)
As a matter of fact, the following statute (Code 1852, § 1923) required a conclusion against the equity of Reynolds' bill:
"When any judgment is or has been rendered in the circuit court against any executor or administrator as such, and an execution thereon has been returned 'No property' by the sheriff, or other officer of the county in which such judgment was rendered, an execution may issue against the executor or administrator, personally, to be levied on his goods and chattels, lands and tenements."
Notwithstanding the provisions of this statute, it appears that the court accepted as the limit of the recoverable damage the defendant had sustained by reason of Reynolds' act to be "the amount of his [Carter's] costs," since it nowhere appears in the opinion of this court that the conclusion attained was based upon the terms of the statute quoted above. The proposition asserted through these last-mentioned grounds of demurrer is not at all applicable to the count under consideration, for the reason that the present demurrants were not parties to the chancery cause described in the bill filed by Gladney and others against Peerson. Under our statutes a judgment or decree for costs can only be awarded a party to a cause, against a party to a cause, unless there is a fund in the control of the court of equity upon which the court may impose the satisfaction of the costs of the cause, in whole or in part. The wrong declared on by this plaintiff was not one for which he could be compensated by a judgment for, and the actual payment of, costs under the statutes of this state, even if our cost statutes were identical with the statute of Marlbridge (52 Henry III) in the respect that that statute conferred on a successful defendant to a civil action, maliciously and without probable cause instituted by the plaintiff, the right, against the plaintiff, to recover damages suffered by the defendant in consequence of his being wrongfully impleaded by the plaintiff. Since the divergence of opinion in this country arises over the effect of cost statutes to limit the damage to which a successful defendant may be entitled because of the vexation of being wrongfully impleaded by the unsuccessful plaintiff, against whom a judgment for costs may be rendered, it is quite clear that factors are there present which are not present in an action for damages for maliciously and without probable cause instigating a third person to institute a civil action, against which malicious instigator no judgment for costs could be rendered.
Until this question is squarely presented for the decision of this court, it is my judgment that its consideration should not be undertaken with a view to establishing a rule in this state, especially in view of the fact that for nearly 100 years the jurisprudence of this state, as read from the decisions of its court of last resort, has not disclosed any effort to avail of the right of action for damages against a plaintiff by a successful defendant in consequence of the plaintiff's having instituted, maliciously and without probable cause, against the defendant a civil cause, commenced by summons only, which involved no restraint of the person of the defendant or the seizure of any property of the defendant.
For the reasons stated, my opinion is that the court did not err in sustaining the demurrer when the ruling is referred to the fifth and sixth grounds of the demurrer. I would, therefore, affirm the judgment.