65 So. 826 | Ala. | 1914
Detinue, by appellee against appellants, to recover saw and planer mill machinery, etc. As originally instituted, the action was against Prank Gossett and E. M. Glenn. By amendment, G. L. Elliott was made a party defendant. Nest, the plaintiff took “a nonsuit as to the defendant E. M. Glenn,” and the court dismissed the cause as far as E. M. Glenn was concerned; judgment for his cost being rendered. There was, in substance, plea of the general issue by the remaining defendants Gossett and Elliott; and the cause
Detinue being an action ex delicto, a discontinuance, or dismissal as to one of several defendants will not discontinue the entire action.-—Strickland v. Wedgeworth, 154 Ala. 654, 45 South. 653.
Furthermore, the evidence is without dispute that Glenn was not in possession of the machinery sued for at the time the suit was commenced. There was, also, evidence tending to- show that Elliott was in possession, it may have been with Gossett, at the time the suit was commenced, whether as agent or employee of Gossett is not material in this connection.
Moreover, no question appears to have been raised in the trial as to the asserted discontinuance because ■of the dismissal of the action against Glenn.
There is argument in brief for appellants that is not based on proper, serviceable exceptions shown by this bill of exceptions. Under the heading of proposition '“three,” it is insisted that the court erred, in its oral
“The defendant reserved an exception to the court’s oral charge with reference to title passing in case Brown agreed to give mortgage for the purchase money and send it back to plaintiff.”
And this:
“The defendant reserved an exception to the court’s charging the jury to count interest under those notes.”
It is manifest that neither of these efforts sufficed to reserve any particular matter or action for review. Exceptions to parts of the oral charge of a court must be taken with respect to the language of the court. Otherwise, as here appears, what was intended to be excepted to would very often be clouded in doubt. An exception to a subject only, treated in an oral charge, is too indefinite and uncertain to present any question for review. Accordingly, the matter of propositions 5 and 10 of the briefs, as well as that numbered 3, are not supported by properly reserved exceptions so as to justify review.
The court properly admitted in evidence the mortgage of E. Brown to Mrs. Morrow. Its execution was fully proven. The agreement of counsel, shown by the bill of exceptions, was that the secondary evidence thereof afforded by the record of the mortgage in the probate office of Blount county should be received in evidence without having to prove the loss of the original. The description of the property purported to be covered by the mortgage was not as definite as to the property’s location as it might have been; yet the description is not so insufficient as to render the instrument absolutely void, as was the defendants’ contention.—Stickney
There was no error in allowing J. E. Brown to give in evidence his opinion of the value of items of this property and of the value of the hire or use thereof.—Code, § 3960. The witness was affirmatively shown to be sufficiently experienced and informed to form an opinion in the premises. The weight or credit to be given his testimony in this respect was, of course, for the jury. The facts in Winter v. Burt, 31 Ala. 33, readily distinguish that case from this, in the particular under consideration.
The report of the appeal in the litigation between J. E. Brown and E. A. Morris and S. M. Allgood (Morris et al. v. Brown, 177 Ala. 389, 58 South. 910) will cast a side light on this litigation between different litigants. Of course, the conclusions of fact there announced are not effective here.
Plaintiff claimed to be entitled to recover the property sued for in virtue of the mortgage executed to her by J. E. Brown. The theory of the defense was that the purchaser from Mrs. Morrow was the mercantile firm, composed of J. L. Addington and J. E. Brown, called the A. & B. Mercantile Company, and not J. E. Brown, alone, to whom, alone, plaintiff asserted the sale was made; and that the defendant’s predecessor in possession and asserted right, E. A. Morris, purchased from
Our conclusion is that, on the facts in evidence, the court did not err in giving, at the plaintiff’s request, special charges 1, 2, and 3.
Affirmed.