Reynolds v. Dismuke

48 Ala. 209 | Ala. | 1872

RECK, C. J.

1. There was no error in permitting the plaintiff to amend his complaint as stated. The objection made, is a mere general objection. No cause is assigned for it. This was, of itself, a sufficient reason for overruling it. If it was intended by said objection to raise the question, that the plaintiff in said count claimed to recover a sum beyond the jurisdiction of the court in which the action was commenced, that was no sufficient reason why it should not be filed, especially as the body of the count shows that the sum claimed does not exceed the jurisdiction of the magistrate’s court. In the case of Cothran v. Weir, (3 Ala. 24,) it is decided that on an appeal from a justice of the peace, the amount of damages laid in the declaration is matter of form, and can not be looked to to show that the court had no jurisdiction. — See, also, Hart v. Turk, 15 Ala. 675. Besides, such an objection, if a good one, should be made by plea, in the nature of a plea to the jurisdiction of the court. — Bentley et al. v. Wright, 3 Ala. Rep. 607.

2. The evidence of the plaintiff, that if he had intended to take the gin and band at all, his intention was to take them as an individual and not as administrator, if that was a material question, which we, however, think it was not, was a question to be decided by the jury, from what he said when the conversation was had, not from an intention not then expressed. That evidence was irrelevant, and may, and probably did, mislead the jury, and* therefore, should h'ave been excluded on the defendant’s objection.

3. In the latter part of the charge of the court to the jury, the law was misapprehended; the real question was, did the plaintiff agree to take the gin and band, and thereby release the defendant from his bid ? If so, it was immaterial, as far as the defendant was concerned, whether he intended to take them as his own, or to hold them as the property of the estate. In either case, he could not after-wards repudiate his agreement and resell the property for a sum less than that bid by the defendant, and charge him with the difference.

4. From what we have said, it -follows that the third charge asked by the defendant was a proper charge, and should have been given.

For the errors mentioned the judgment is reversed, and the cause remanded for another trial at the appellee’s cost.