Ard v. Crittenden

• Decision Date: 30 May 1903
• Citation: 39 So. 675
• Parties: ARD v. CRITTENDEN.
• Court: Alabama Supreme Court

39 So. 675

ARD v. CRITTENDEN.

Supreme Court of Alabama

May 30, 1903

Appeal from Circuit Court, Covington County; Wm. H. Samford, Special Judge.

"Not officially reported."

Action by R. G. Crittenden against Charley Ard. From a judgment for plaintiff, defendant appeals. Affirmed.

Jas. F Jones, for appellant.

Powell Albritton & Albritton, for appellee.

DENSON J.

This is an action of detinue, commenced by Crittenden against Ard, to recover five oxen, described in the complaint as the oxen obtained by Ard from J. J. Barrow, Jr. The plaintiff claimed title to the oxen through a mortgage executed to him by one W. D. Johnson on the 30th day of April, 1902. The mortgage was not recorded until the 19th day of August, 1902. In June or July, 1902, Johnson, the mortgagor, sold the oxen to one J. J. Barrow, Jr., and in November or December, 1902, Barrow sold the oxen to the defendant, Ard.

The litigated question in the case was whether Barrow, when he purchased the oxen from Johnson, had actual notice of Crittenden's mortgage. Any testimony tending to show that he did have notice was proper. Consequently any statements made by Johnson to Barrow at the time of the sale, showing that plaintiff had a mortgage or lien on the oxen, were competent as evidence. But statements made by Johnson to other parties, not in the presence or hearing of Barrow, were not material nor binding on either. Hence plaintiff's objections to the questions asked by the defendant of witness Johnson, seeking to prove statements made to Mitchell and others, were properly sustained by the court. Bunzel v Maas & Schwarz, 116 Ala. 68, 22 So. 568. The statements were not, as is insisted by appellant, explanatory of Johnson's possession of the oxen, nor were they admissible on the theory of res gestæ.

There was no objection to the question that elicited the testimony that Deens told Payne that "he had slept over his rights; that the mortgage was not recorded until after Johnson sold the teams to Barrow." Therefore it was not a matter of right on defendant's part to have the testimony excluded, even conceding that it was irrelevant or illegal. Insurance Co. v. Tillis, 110 Ala. 201, 17 So. 672; Billingsley v. State, 96 Ala. 126, 11 So. 409; McCalman's Case, 96 Ala. 98, 11 So. 408. Moreover, there was nothing prejudicial to appellant in this testimony. Where evidence is so immaterial that it clearly appears that the court and jury...