ON REHEARING
In his application for rehearing, appellee argues that where the plaintiff, in *596a malicious prosecution suit had a judgment rendered favorable to him in a prior ■civil suit, that judgment is prima facie evidence of want of probable cause. Penney v. Warren, 217 Ala. 120, 115 So. 16. Apparently, appellee relies on that paragraph under headnote No. 4, which is as follows:
'“The attachment plaintiff’s failure to prosecute his suit to judgment is always prima facie evidence that the suit was wrongful. And where the evidence shows a judgment for the defendant on the merits, it is conclusive of the wrongfulness of the suit. Smith v. Summers, 215 Ala. 690, 112 So. 344. The evidence here showed a judgment in the circuit eourt for the defendant in attachment on the merits; and hence the jury were properly instructed that under the evidence he was not indebted to the plaintiff in attachment, and the writ of attachment was wrongfully sued out. Lockhart v. Woods, 38 Ala. 631, 637. * * *"
We do not interpret the above quoted material as does appellee. We construe that paragraph as holding that a judgment favorable to defendant is prima facie evidence that the suit was wrongful. It does not say that a favorable judgment is prima facie evidence of want of probable cause. Indeed, the case of Smith v. Summers, cited therein, is to the same effect. As we pointed out in our opinion, proof of the “wrongful institution” of a civil suit without the concurrence of malice and want of probable cause, will not support an action for malicious prosecution. McCarty v. Williams, 212 Ala. 232, 102 So. 133. See also Turner v. J. Blach & Sons, 242 Ala. 127, 5 So.2d 93.
We are still of the opinion appellee failed to carry the burden of proving want of probable cause.
Opinion extended.
Application for Rehearing Overruled.