Wilson v. Lewis

65 So. 919 | Ala. Ct. App. | 1914

WALKER, P. J.

This is the second appeal in this case. — Lewis v. Wilson, 155 Ala. 668, 45 South. 1037. Under the evidence adduced on the last trial there was no room for dispute as to the plaintiff’s ownership of the chattels alleged to have been converted at the time of the occurrences which were claimed to have constituted a conversion- of them by the defendant. One of those occurrences was a sale of the property of one Gorman, at which the defendant became the purchaser of it with full notice of the plaintiff’s claim to it. Some question was made as to the defendant’s assuming control or dominion of the property under his purchase. An admission by the defendant that he took possession of the property under the unauthorized sale at which he was a purchaser and held it until he resold it was, in the circumstances, in effect an admission that he converted it. It was permissible to prove by the witness Whiteside that the defendant made such an admission when he testified in the previous trial of the case.

There was no impropriety in the witness Whiteside refreshing his recollection of the testimony of the defendant in the former trial by an examination of the report of that testimony contained in the bill of exceptions which the witness prepared after that trial, and the motion to exclude the testimony of this witness as to what was testified to by the defendant in the former trial was properly overruled. — Billingslea v. State, 85 Ala. 323, 5 South. 137; Powell v. Henry & Co., 96 Ala. 412, 11 South. 311; Battles v. Tallman, 96 Ala. 403, 11 South. 247.

That the defendant committed the alleged conversion we think is a necessary conclusion from the undisputed evidence as to his purchase of the chattels in question at an unauthorized sale of them, which he directed to be proceeded with, and as to his obstruction of the effort of the plaintiff’s agent to obtain possession of them after the sale. His intermeddling with the property and assumption of a dominion over it which was subversive of that of the true owner amounted to a conversion, whether there was or was not a physical taking of the chattels by him. — Rogers v. King, 151 Ala. 628, 44 South. 655. As the undisputed evidence showed that there was a conversion as alleged, and that the damage thereby inflicted upon the plaintiff amounted to at least $500, the court did not err in giving the written charge which is referred to in the sixth assignment of error.

The.first assignment of error and the part of the brief of the appellant’s counsel which undertakes to support it refer to a page of the transcript which contains nothing indicating that the court made such a ruling as the one which is complained of. Though evidence of such a ruling having been made may be found in another part of the transcript, the effect of the noncompliance with the requirement of practice rule 10 (61 South, vii) as to references to the pages and lines of the transcript is that the appellant has failed to put upon the court the duty of considering the assignment of error in question. The court is not to be expected to search for supposed errors not distinctly pointed out in the manner prescribed by the rule.

Affirmed.