Higdon v. Garrett

59 So. 309 | Ala. Ct. App. | 1912

WALKER, P. J. —

The complaint contained tAvo counts, each of them folloAAÚng a form prescribed by the Code, the first being for trespass in taking personal property, and the second for conversion. There can be no question as to each of the counts alleging a cause of action, as each of them aAmrs a breach of duty in a manner made sufficient by statute. — Code, § 5382, Forms 23 and 24. The suggestion is made in the argument of the counsel for the appellant that the complaint Aims subject to objection because of its failure to sIioav any breach of duty by the defendant as sheriff, though the caption of the complaint shoAAred that the suit Avas against him in his official capacity. The demurrer to the complaint did not specify any objection to it on this ground. The record does not shoAV that the defendant raised any question in the trial court as to the capacity in which he was sought to be charged Avith liability. As the complaint contained a substantial cause of action, the judgment on it cannot be reversed or set aside for matter not objected to in the trial court.— Code, § 4148. The suit was against the sheriff alone, and the record involves no question of the liability of the sureties on his offiicial bond for the breach of duty complained of. There was no insufficiency in the description of the property alleged in the complaint to have been converted, as suggested in one of the grounds of demurrer to it. — Hooper v. Dorsey, infra., 58 South. 951. The court Avas not in error in 0Arerimlingthe demurrers to the complaint.

The defendant’s second plea embodied a denial that the plaintiff had any claim to the property the subject of the suit. ‘He could not have been prejudiced by'the action of the court in sustaining the demurrers to that plea, as the state of facts set up by it Avas available to him under his plea of not guilty.

The defendant’s third plea as it Avas amended Avas subject to the demurrer interposed to it. Its averments did not shoAV that the defendant, at or before the time of his seizure of the property in question, Avas informed of the alleged disclaimer by the plaintiff of title to that property, or that his conduct with reference to it was induced or influenced by any act or statement of the plaintiff. He was not entitled to base a claim of estoppel upon conduct of which he was not informed and upon which he could not have relied. — Brooks v. Romano, 149 Ala. 301, 42 South. 819; Alabama Fertiliser Co. v. Reynolds, 85 Ala. 19, 4 South. 639; 8 Ency. of Pleading & Practice, 11.

Affirmed.