Planters Trading Co. v. Moore

| Ala. Ct. App. | May 1, 1913

THOMAS, J.

The appellee, Moore, commenced suit for work and labor done against Wise & Williams in. the justice of the peace court by original attachment, which was levied upon certain logs alleged to belong to the defendants. The appellant, the Planters’ Trading Company, interposed a claim to the property by executing the required statutory bond and affidavit. The claimants were successful in the justice court, whereupon plaintiff appealed to the county court of Coffee county.

The notice of appeal as provided by law was not given; but the bill of exceptions affirmatively recites that the claimant had entered a general appearance, and that the cause had been continued several times after such appearance before any question was raised by claimant as to the notice not being given; and the record proper shows that the motion to stay the proceedings until or dismiss the appeal unless the notice was given was only filed on July 9, 1909, the date of the judgment, Avhereas the appeal Avas taken on June 30, 1908; and the record shoAVS further that on July 7, 1908, the claimant made a motion to require the plaintiff to give a good and sufficient appeal bond, which Avas then done. Hence we find no conflict between the recital of the bill of exceptions and the showing of the record proper on this subject, as is claimed. After a voluntary appearance an objection for want of notice of appeal comes too late. — Citations under section 4717 of the Code.

We are of opinion, hoAvever, that the trial court erred in giving at plaintiff’s request Avritten charge No. 2, assigned as error. The reporter Avill set out this charge. It is not only highly confusing and misleading, but is also not a correct exposition of the laAV. If Wise & Williams Avere partners, engaged in the logging business, and the logs Avere purchased for such partnership, as the charge hypothesizes, and which there Avas some evidence tending to show, then a sale to claimant of said logs by Wise alone under some circumstances which certain theories of the evidence tend to support Avould pass the partnership title to the claimant.

The charge asserts to the contrary, and. is otherwise faulty in charging that if there was a partnership between Wise and Williams a sale by Wise of his interest alone in logs owned by the partnership would confer on the purchaser a title to a one-half undivided interest in the property. This is not the law. A transfer by a partner of only his interest in the partnership property merely entitles the transferee to receive such partner’s share of what may remain after a settlement of the partnership affairs and the payment of the partnership debts. — 22 Am. & Eng. Ency. Law (2d Ed.) 104, 105. The latter mentioned defect of the charge was probably not injurious to claimant, but the former undoubtedly Avas.

It is unnecessary to point out other vices of the charge, or those of charges one and three, which are condemned. Any error, if there was error, in the proceedings leading to the entry of the judgment nunc pro tunc, need not be considered.

For the error pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.