Craddock v. Walden, 63 So. 534

Craddock v. Walden

63 So. 534 | Ala. | 1913

ANDERSON, J.

— It has long since ceased to be an error, or irregularity working a reversal of a judgment that the record does not disclose a formal issue between the parties. The judgment shows that issue was joined between the parties, and a jury tried said issue and found in favor of the plaintiff, and assessed the value of the property, which was ordered sold or condemned to satisfy the plaintiff’s judgment. . •

Nor will the fact that the judgment ordered the property sold or condemned, instead of sold and condemned, operate to reverse the judgment. An error in this respect was but a clerical misprision, amendable upon motion in the circuit court, and would not be cause for reversal here. — Gray v. Raiborn, 53 Ala. 40.

The claimant was not entitled to the general charge upon the theory that the plaintiff did not make out a prima facie case because the mule levied upon was not shown to be in the possession of the defendant. The mule, was found in the defendant’s lot, and the said defendant was presumptively the head of the family. He at least had a community of possession with his wife, and which said possession was not ousted or placed exclusively in the wife unless she had the legal title to the mule. — Anglin v. Thomas, 142 Ala. 264, 37 South. 784. The wife, the claimant, attempted to show title *61to the mule, but the jury evidently found that she had no title, and that the sale to her by her husband was void. If said sale was void, then the husband had the title and possession, and it was at least a question for the jury as to whether or not the plaintiff made out a prima facie case. Moreover, the evidence showed that the husband did own the mule unless he had made a valid sale to his wife, and the validity of said sale was the only contested issue, and which said question was properly submitted to the jury.

“In trials of the right of property, declarations or admissions by the defendant in execution, made in the absence of claimant, are, as a rule, not admissible. They come under the class of hearsay evidence. But parties in possession of such property may make declarations explanatory of their possession, and either claim or disclaim ownership of the property, and such declarations may be given in evidence in an issue of disputed ownership, no matter who may be the parties to the suit. This because they are supposed to. constitute a part of the res gestae. Such declarations, however, must not go beyond the time at which they are spoken. A declaration as to how title was acquired is not admissible.” — Daffron v. Crump, 69 Ala. 77; Ray v. Jackson, 90 Ala. 513, 7 South. 747; Baker v. Drake, 148 Ala. 513, 41 South. 845.

The declarations made by the defendant to the constable that Mr. Holman had a claim on the mule and would get it in five minutes was in disparagement of the claimant’s title, and was not a part of the res gestas, as the mule was in Holman’s stable at the time, and said declarations were made by the defendant before they reached the stable.

The claimant should have been permitted to show the consideration of the mortgage to Malone & Espy Co., that she loaned the amount borrowed to the defendant. *62and that the bill of sale to the mule in question was made in payment of said debt. Indeed, the only issue in the case was whether or not the defendant owned the mule or had made a bona fide sale of same before the levy, to his wife, the claimant.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, ' C. J., and Mayfield and de Graffenried, JJ., concur.