50 So. 186 | Ala. | 1909
This is an action by .the appellee against the appellant on a supersedeas bond given on appeal to this court from a judgment in a detinue suit. The judgment in the detinue suit (March 22, 1905) was for certain property therein described, valued at $1,-
Alternate value of property as assessed____$ 1,264 09
Judgment for use or detention, March 22, 1905 — ■_________________________— 126 40
Interest on same to December 11, 1907_____ 27 52
Ten per cent damages on alternate value and judgment-------------------------139 04
Interest on $139.04, November 14 to December 11, 1907 ________________________ 84
$1,557 89
Also costs _____________________________ 141 65
Total___________________________ $1,699 54
The claim for damages, in the complaint, is based on complainant’s being deprived of the use of the property from April 8, 1905, to December 12, 1907, and also for attorney’s fees, for services in this court. Judgment was rendered for $447.09, and from that judgment this appeal is taken.
The gist of the defense made by the pleas is that the plaintiff, having elected to take the alternate value in place of the property itself, cannot now claim for the use of the property since the judgment was rendered.
The plaintiff says, however, that the bond was given to secure it from all damages resulting from the taking of the appeal, and that it has not been placed in as favorable a position as it would have been in if the appeal had not been taken. That may be; but it does not necessarily follow that it may combine its remedies by taking the alternate value and the use of the property also. At the time this supersedeas bond was given, the plaintiff had judgment for the property or the alternative value. The question then would be: 'What damage has it suffered by reason of the fact that it has been postponed in the realization on that judgment? If the claim had been for the difference between the money which it would be entitled to at the time of settlement, on the money judgment, which it elected to take, and the total amount which it did receive, we will not say that it would not be entitled to recover. But the complaint claims only for the use of the property, which it is not entitled to; so the court erred in instructing the jury
The court’s oral charge, which was given ex mero motu, and not on written request, that “if they believe the evidence they must find for the plaintiff as to the claim for attorney’s fees,” was a charge on the effect of the evidence, and erroneous. — Code 1907, § 5362, 5364; Gaynor, Adm’x, v. L. & N. R. R. Co., 136 Ala. 244, 258, 33 South. 808.
It was also err or. to instruct that jury that plaintiff was entitled to recover interest on the amount of attorney’s fees, as there was no proof that the same had been paid, or that it was claimed.
It is unnecessary to discuss specially the points raised by the pleadings, as the same general principles herein announced run through them all. The judgment of the court is reversed, and the cause remanded.
Reversed and remanded.