55 So. 135 | Ala. | 1911
Appellee sued appellant, joining counts in trover, detinue, and trespass on the case for a destruction of plaintiff’s alleged lien as a landlord. The purpose of the suit was to recover a bale of cotton, or its value, which had been groivn by one Hancock during the year 1909, and delivered by him to defendant in part payment of a crop mortgage made by Hancock to defendant, and duly recorded March 22, 1909. Plaintiff put forward his claim in two aspects: First, as assignee of a mortgage which Hancock had made to D. H. Riddle on April 3, 1909, transferred by him to plaintiff on April 6th thereafter; second, as to the holder of a landlord’s lien.
1. The mortgage under which defendant claimed conveyed the legal title, and antedated the mortgage to Riddle under which the plaintiff claimed, thus leaving with plaintiff a mere lien if anything. A mere.lien will not support actions in trover or detinue.
It has been uniformly held that the affirmative charge should not be given where the evidence is in conflict as to any material fact in issue, or where from the evidence reasonable inferences may be drawn unfavorable to the party requesting the charge.—L. & N. R. R. Co. v. Lancaster, 121 Ala. 471, 25 South. 733.
And it has been repeatedly said that where the bill of exceptions does not purport to set out the entire evidence, nor all its tendencies, any state of the evidence Avill be presumed which Avould sustain the ruling of the trial court. In a number of cases, it has been held that a bill of exceptions, framed after the fashion of the bill
It is shown that the plaintiff! introduced evidence to support the complaint. It is further shown that the defendant then introduced proof of facts which, in view of the law of the case as we have stated it, constituted a perfect defense to every aspect of the case alleged in the complaint and sustained by plaintiff’s evidence. The court gave the general affirmative charge for the plaintiff. This action of the court, and its refusal of a similar charge to the defendant, raise the only questions presented for review. Does the rule hitherto stated in respect to presumptions in favor of the rulings in the trial court require that we shall presume in the presence of this record that the plaintiff abandoned the only case the record tends to support and establish beyond dispute, for an entirely different case of which the record gives no intimation? And shall we presume that the court below has certified to this court a bill of exceptions which contains evidence foreign to the issue tried in that court, and omits all reference to the evidence which formed the basis of the court’s ruling? Only so can the record be relieved of the.fact, now appearing on its face, that the plaintiff was not entitled to the general charge. No introduction into the record of presumed evidence, relevant to the issues joined, can eliminate that fact. As long as the evidence shown by the bill of exceptions to have been offered by the parties is allowed to stand as identifying the issues of fact between the par
We are now of opinion that Barnett v. Wilson, so far as it conflicts with what has been said, should be overruled. From this ruling, however, McClellan, J., dissents. He thinks that case was correctly decided, and that it ought to control the disposition of this case. The rest of us think the action of the trial court in giving the general affirmative charge for the plaintiff is
Reversed and remanded.
The following will indicate - the grounds of my conclusion that the doctrine of Barnett v. Wilson, 132 Ala. 375, 31 South. 521, from which my Brothers now. depart, is sound:
First. Independent of the correctness vel non of the •doctrine, stare decisis should forbid its overthrow after the doctrine, as pronounced in Barnett v. Wilson, has stood, and doubtless has been many times applied for at least nine years without criticism.—Snider v. Burks, 84 Ala. 57, 4 South. 225; Herstein v. Walker, 85 Ala. 40, 4 South. 262; I Burr, 419.
Second. The chief authority upon which, the departure from the pertinent doctrine of Barnett v. Wilson is rested is Gaines v. Harvin, 19 Ala. 491, written by Justice Chilton. The following later decisions from his pen make it clear in my opinion that neither he, nor the court for which he wrote, regarded this feature of the pronouncement in Gaines v. Harvin as authoritative or its rule, in this particular, as binding in any degree.—Jones v. Stewart, 19 Ala. 701; Barnes v. Mobley, 21 Ala. 232. In the latter he did not cite Gaines v. Harvin, hut did cite Jones v. Stewart, in which no account was taken of the doctrine of Gaines v. Harvin. To the contrary of Gaines v. Harvin, Justice Chilton said, in Barnes v. Mobley. “It is impossible for this
Third. Aside from the impediment to review in such cases, to which this court wrote in Barnes v. Mobley, above quoted, and in its many successors, the rule as a; matter of substantive law of Gaines v. Harvin has in my opinion been repudiated by the broad, comprehensive, and unqualified pronouncements in these cases, among others cited in brief for appellee; Alexander v. Alexander, 71 Ala. 297; M. & E. Ry. Co. v. Kolb, 73 Ala. 405, 49 Am. Rep. 54; Barnes v. Mobley, supra; Com’rs. v. Godwin, supra; Jones v. Stewart, supra; Taylor v. McElrath, supra; Keep v. Kelly & Levin, 29 Ala. 322, 324; Lovett v. Chisholm, supra. And it will be
The ground of the decision in this particular in Barnett v. Wilson and of its predecesors in declared principle in one aspect is the presumption that attends review of action below; the obligation being on the appellant to overcome the presumption and to show error. Where, as here, the bill does not purport to contain all or substantially all of the evidence upon which the trial court acted, obviously no conflict with the record is instituted by the application, to avert error, of the presumption that there was other evidence before the court. So the only lead to the institution of a contradiction of the record by the application of the presumption in such cases must be found in the character of the evidence the appellate court, with the purpose to avert error would assume as having been before the trial court along with that set out in the recitals of the bill. Of course, the presumption cannot contradict the record. But does the application of the presumption do so when only the evidence set forth in the bill — less than all, or substantially all, the evidence adduced on the trial — shows a conflict therein on the issue or issues before the court? To so affirm necessarily restricts the operation of the presumption to that effect, and to that character, of evidence recited in the bill opposed to the propriety of the action taken by the trial court. The doctrine of
So far as the writer can find, the quoted doctrine of these decisions has not been doubted or qualified. If this quoted doctrine is accepted as adjudged to finality here, the indicated restriction of the operation of the presumption cannot in my opinion stand; for the presumption “of any state of proof,” or “of any state of facts,” or “of any possible state of testimony bearing on the question,” expressly refutes the limitation of that application of the presumption to evidence consisting only with that opposed to the view enforced by the trial court in giving the affirmative charge.
In the light of these considerations, I cannot concur.