66 So. 890 | Ala. Ct. App. | 1914
The appellants, who were the defendants in a detinue suit, appeal from the judgment against them, and assign as error, among other things, the refusal of the lower court to give the affirmative charge in their favor, here urging that it should have been given for two reasons: First, because the evidence failed to show that the defendants were in possession of the property at the time the suit was brought ; and, second, because the evidence failed to show that the plaintiff made any demand on defendants for the possession of the property prior to bringing the suit.
With respect to the first contention, and as a complete answer thereto, without further consideration, it need only be said that the common-law rule, previously obtaining in this state, requiring the plaintiff in a detinue suit, when the defendant pleads the general issue, to prove possession in defendant of the property at the time of the commencement of the suit, has been abrogated by statute (Gen. Acts 1911, p. 33), which declares, among other things:
“That the general issue, when pleaded in a detinue suit is an admission of the possession by defendant of the property sued for at the time of the commencement of the suit.” — Gen. Acts 1911, p. 33.
A demand before bringing suit is sometimes necessary in a detinue case as a predicate for the recovery of damages for detention prior to the bringing of suit, even though it be not necessary as a prerequisite to the recovery of the property itself (3 Mayf. Dig. 53) ; but clearly such a question cannot be raised by a request on the part of the defendant for the general affirmative charge. — Hodges v. Kyle, 9 Ala. App. 458, 63 South. 761. Besides, it may be stated that in this case the claim for all such damages was expressly waived before the jury retired, and none were recovered.
■ What we have said disposes of all of the refused charges except the one made the basis of the fourth as signment of error, with respect to which it is sufficient to say that it is fully covered by given charge Noi 1.
Under the rules laid down by our Supreme Court governing appellate courts in the review of the actions of trial courts on motions for new trials, it is SO' clear, upon reading the mass of conflicting and irreconcilable evidence coming from the mouths of the many witnesses, pro and con, in the case at bar, that we should not dis
The verdict of the jury, which was as follows: “We, the jury, find for the plaintiff for the property sued for, or its alternate value of $35.00” — is, when reasonably interpreted — and construed in the light of the issues submitted to the jury, in substantial conformity with the requirements of section 3781 of the Code. It is an express finding for the plaintiff for the property sued for and an implied finding that the value of that property, which the complaint discloses was “one red cow ” was $35. Whatever else this verdict may contain is surplusage. Any finding as to damages for detention was properly omitted, as all such damages were, as before stated, previously waived.
The judgment of the court, after reciting in usual form this verdict, proceeded as follows:
“Whereupon it is ordered and adjudged by the court that the plaintiff have and recover of the defendant the property for which he sues, and described in the complaint as follows: One heifer calf; and if the same cannot be had, then that the plaintiff have and recover of the defendant the sum of $35, being the alternate value of said calf so assessed by the jury as aforesaid, together with all costs in this behalf expended,” etc.
It is thus seen that the judgment correctly follows the verdict in adjudging that the plaintiff have and recover of the defendant the property sued for, if to be had, and if not, then its alternate value of $35, as found by the jury, but goes beyond the verdict in incorrectly reciting that the property sued for as “one heifer calf,”
Corrected and affirmed.