47 So. 569 | Ala. | 1908
— Many of the assignments of error relates to charges upon the law as applicable to the plea of res judicata (No. 3), and which need not be considered, as this issue could have been eliminated by the trial court, as the evidence did not support said plea. The plea avers that plaintiff bought the cow, if at all, after the institution of the former suit, December 22, 1903, and the undisputed evidence shows that he bought'her from O. L. Gamble prior to the institution of said suit. Regardless, however, of this issue, there Avas a. sharp conflict in the evidence as to Avhether the defendant or O. L. Gamble OAvned the cow. The defendant testified to having raised her from a calf. “Nobody else has ever owned her but myself.” She also testified that she Avas in possession before the plaintiff’s vendor, O. L. Gamble, ever got her. It Avas therefore a question for the jury to determine as to Avhether or not the cow belonged to the plaintiff or the defendant.
The trial court erred in giving charges 1, 2, and 4, requested by the plaintiff, as they ignore the defendant’s proof of title, irrespective of the former judgment, and assume that the plaintiff should recover if he bought the coav from O. L. Gamble before the first suit was brought, thus assuming that O. L. Gamble owned the coav and ignoring the defendant’s evidence of ownership.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
