62 So. 967 | Ala. Ct. App. | 1913
Appellant’s nine assignments of error all attack the special finding made by the trial court as not being a compliance with the requirements of section 5360 of the Code, providing that, when a request in writing is made for a special finding of facts, the court must state in writing the facts as it finds them, as-a basis for the judgment rendered.
As plaintiff in the court below, the appellant sued the defendants in detinue to recover a mare. It was shown on the trial that the animal was in the. possession of a firm of liverymen known as Eden & Chatman, Avhen this firm purchased of the plaintiff a pair of mules, giving a mortgage on the mules and the mare in question to secure the purchase money. It was shown that the mortgage was past due and unpaid, and that the plaintiff made demand of the defendants, in whose possession the animal Avas at the time, before bringing suit. There Avas evidence introduced in behalf of the defendants to the effect that Eden & Chatman had sold the mare to an employee, one of the defendants, John Redd, prior to the time the mortgage was given to plaintiff, and that the mare Avas his property, and that he had not consented to its being mortgaged to plaintiff. Evidence Avas introduced in behalf of the plaintiff, in rebuttal, tending to show that the animal was kept in the stable and used in the business of Eden & Chatman, like their other stock, for a period of about tAvo years, and that on the occasion Avhen the mortgage was given to the plaintiff the defendant John Redd was present and heard the conversation between the parties, and virtually consented to the mare’s being included in the mortgage, and that subsequently Redd had admitted that he
The special finding of facts made by the court in this case does not find the material facts in issue before the court on which the case was tried, except by intendment. .It does not find, except possibly by inference or intendment: (1) That the parties from whom defendants claimed to have bought the animal ever owned it or had it in possession; (2) that the plaintiff did or did not have a mortgage on the property; (3) whether or not defendants were in possession of the property sued for, and that a demand was made on them by the plaintiff; (4) whether the purchase by defendant Redd from Eden & Chatman was prior to the mortgage; (5) whether or not the facts relied.upon to show an estoppel were found to exist; (6) whether or not the defendant Redd knew of the mare’s being included in the mortgage; and (7) whether or not the defendant Redd had the conversations and made the admissions to the plaintiff’s representative, testified to by him and denied by the defendant Redd. The finding set out in the record states that “the evidence is not sufficient to justify the court in holding Redd bound by an estoppel,” and following this statement is a discussion of some of the evidence and of the rules of law applicable; but what the court found to be the facts in support of this conclusion is not set out, and we are therefore furnished nothing
The effect of this failure upon the-part of the court to set out the facts found by it on which the conclusion was arrived at from the evidence is to deny the appellant, who requested the special finding, the right of review provided by statute (Code, § 5361); for, if the facts as found by the court are not set out, we are, -of course, unable to examine and determine from them whether they are sufficient to support the conclusion or judgment. The court says in the special finding that certain parts of the evidence, pretermitting other parts, afforded an inference that the defendant Redd knew the mare was being mortgaged to the plaintiff; but what the court found to he the fact with respect to this matter on the whole evidence is not stated, and we do not know, from what is said in the special finding, whether the court found facts showing an estoppel by a preponderance of the evidence, and also found that there remained a substantial doubt of the fact in the mind of the court. The plaintiff complied with the requirements of the law in requesting a special finding, and was entitled to have the court state in writing the facts as it found them, to he entered on the minutes. The finding set out is rather an argumentative discussion of parts of the evidence, and a reasoning of the legal principles applicable, than a finding of the material facts in issue upon which the court’s conclusion and judgment is based. It is not a compliance with the requirements of the statute. — Code, § 5360; Brock v. L. & N. R. R. Co., 114 Ala. 431, 21 South. 994; Betancourt v. Eberlin, Adm’r, 71 Ala. 461; Bibb v. Hall & Farley, 101 Ala. 79, 14 South. 98.
Reversed and remanded.
