Associates Inv. Co. v. Hamm

• Decision Date: 26 June 1969
• Docket Number: 1 Div. 401
• Citation: 284 Ala. 332,224 So.2d 880
• Parties: ASSOCIATES INVESTMENT COMPANY v. Paul HAMM.
• Court: Alabama Supreme Court

Page 880

224 So.2d 880

284 Ala. 332

ASSOCIATES INVESTMENT COMPANY v. Paul HAMM.

1 Div. 401.

Supreme Court of Alabama.

June 26, 1969.

Engel & Smith, Mobile, for appellant.

Hand, Arendall, Bedsole, Greaves & Johnston and Donald F. Pierce, C. Wayne Loudermilch, Mobile, for appellee.

LAWSON, Justice.

At the time of submission, this case was assigned to the late Justice Goodwyn and after his death was reassigned to the writer on July 28, 1968.

This is a detinue suit filed in the Circuit Court of Mobile County on February 9, 1965, by Associates Investment Company, a corporation, against "Hamm, whose name is otherwise unknown, John Doe and Richard Roe, jointly and severally, and whose correct names will be supplied when ascertained," to recover a "Grand Prix Sport Coupe, Serial No. 894A 3464, Texas License No. BZ 3624," and damages for its detention from February 9, 1965.

The return of the sheriff shows that he took the automobile into possession on February 9, 1965, under "Writ of Detinue" apparently issued by the clerk based on affidavit and bond made by the plaintiff. The defendants failing to make bond within five days after seizure, the plaintiff on February 19, 1965, made bond and obtained possession of the automobile. § 920, Title 7, Code 1940.

The complaint is in Code form. Form 27, § 223, Title 7, Code 1940.

On March 8, 1965, Paul Hamm filed three pleas, the first of which was "Not guilty"; the second, "The allegations of the complaint are untrue." The third plea was a special plea the averments of which need not be set out or summarized.

The plaintiff on May 6, 1965, filed "Demurrer To Pleas," the grounds of which were addressed "to the defendant's Pleas and separately and severally to each Plea thereof * * *."

The trial court on May 28, 1965, rendered a judgment which reads in part as follows: "It is ordered and adjudged by the Court that the Plaintiff's demurrer filed May 6, 1965 to the Defendant's pleas in this cause, be, and the same is hereby sustained." So, demurrer was sustained not only to Plea 3, the special plea, but to Pleas 1 and 2, although Plea 2 was a plea of the general issue. We have said that in an action of this kind the general issue is nondetinet or an averment that the allegations of the complaint are untrue. Norris v. Kelly, 249 Ala. 281, 31 So.2d 129; Webb v. Webb, 263 Ala. 607, 83 So.2d 325.

On April 25, 1966, "the defendant" filed an instrument which bears the caption "Amended Pleas," but the pleas are actually additional pleas, numbered 4 and 5.

On May 16, 1966, the plaintiff refiled to Pleas 4 and 5 the grounds of demurrer previously filed to Pleas 1, 2 and 3, and filed additional grounds of demurrer to Pleas 4 and 5.

Demurrer was sustained to Pleas 4 and 5 on May 31, 1966, but on June 17, 1966, the trial court set aside its judgment of May 31, 1966, and rendered a judgment overruling the "demurrer" to Pleas 4 and 5.

On June 27, 1966, Plea 1, "Not guilty," was refiled.

On June 28, 1966, the following "Order" was rendered by the trial court:

"In open Court on this day, It is ordered and adjudged by the Court that the Defendant be, and he is hereby allowed to amend Pleas 4 and 5 in ink by striking certain portions."

This "Order" of the trial court is not questioned. See Clover Creamery Co. v. Diehl, 183 Ala. 429, 63 So. 196.

Demurrers previously interposed to Pleas 4 and 5 were refiled on June 28, 1966, after those pleas had been amended "in ink by striking certain portions." On the same day the demurrer was overruled.

Also on June 28, 1966, the plaintiff amended its complaint by designating "the name of the Defendant to read: Paul Hamm * * *."

As we understand this rather confusing record, the case went to the jury on Associates Investment Company's complaint, as amended, and on Paul Hamm's Plea 1 and on Pleas 4 and 5 as amended "in ink." The defendant's Plea 1, "not guilty," appears to have been treated as the general issue by the court and the parties. See Norris v. Kelly, 249 Ala. 281, 31 So.2d 129.

The jury returned a verdict " * * * in favor of the Defendant for the property sued for and described in the complaint." Judgment was in accord with the verdict. After the trial court denied plaintiff's motion for a new trial, it appealed to this court.

Appellant has made twenty-two assignments of error, but has argued only seven. The others have been waived. Faust v. Paramore, 282 Ala. 20, 208 So.2d 589.

We will consider the argued assignments of error in the order in which they are argued in appellant's brief.

Assignment of Error 7 is to the effect that the trial court erred in overruling appellant's demurrer interposed to "Pleas 4 and 5 of Defendant amended in ink on June 28, 1966."

Three grounds of the demurrer are argued in appellant's brief. The other grounds of the demurrer will not be treated in this opinion since they have not been argued. See Pappas v. Alabama Power Company, 270 Ala. 472, 119 So.2d 899.

The record contains a plea numbered 4 and a plea numbered 5. Red lines have been placed over or through certain words and numerals in each of those pleas. Pleas 4 and 5 as they appear in the record will be set out hereafter. We will italicize the words and numerals over or through which the red lines have been placed. We assume that the said red lines represent the Circuit Clerk's effort to make Pleas 4 and 5 as set out in the record depict the condition of the original pleas after they had been amended "in ink by striking certain portions."

"4. The Defendant avers that on, to-wit, February 9, 1965, he purchased said 1964 Grand Prix Pontiac automobile at a federal tax sale from the United States of America in Mobile, Alabama. Prior to that time, the United States of America had filed against Ronald and Patricia Clausheide, in the Probate Court of Mobile County, Alabama, a notice of a lien for past due income taxes, which notice was filed on to-wit, December 9, 1964. Said United States of America had seized said 1964 Grand Prix Pontiac automobile from the possession of said Ronald and Patricia Clausheide. The Defendant avers that under the provisions of Title 47, Section 123 and Section 131 of the Code of Alabama of 1940, as revised, the plaintiff herein was required to record in the Probate Court of Mobile County, Alabama, within 90 days after said 1964 Grand Prix Pontiac automobile was brought into the State of Alabama, any conditional sales contract or chattel mortgage which it held, effecting (sic) said automobile, or such conditional sales contract or chattel mortgage would be void and inoperative as against a bona fide purchaser for value and without notice. Defendant avers that said automobile was brought into Mobile County, Alabama, and such conditional sales contract or chattel mortgage was not recorded within three months from the time that the automobile was first brought into the County of Mobile, State of Alabama. Defendant avers that he was a bona fide purchaser for value and without notice of the alleged conditional sales contract or chattel mortgage at the time that he purchased the car. Hence, Defendant is a member of the class protected by the Title 47, Section 123 and Section 131, Code of Alabama, 1940, as revised, and Plaintiff ought not recover.

"5. The Defendant avers that on, to-wit, February 9, 1965, he purchased said 1964 Grand Prix Pontiac automobile at a federal tax sale from the United States of America in Mobile, Alabama. Prior to that time, the United States of America had filed against Ronald and Patricia Clausheide, in the Probate Court of Mobile County, Alabama, a notice of a lien for past due income taxes, which notice was filed on to-wit, December 9, 1964. Said United States of America had seized said 1964 Grand Prix Pontiac automobile from the possession of said Ronald and Patricia Clausheide. The Defendant avers that under the provisions of Title 47, Section 123 and Section 131 of the Code of Alabama of 1940, as revised, the Plaintiff herein was required to record in the Probate Court of Mobile County, Alabama, within 90 days after said 1964 Grand Prix Pontiac automobile was brought into the State of Alabama, any conditional sales contract or chattel mortgage which it held, effecting (sic) said automobile, or such conditional sales contract or chattel mortgage would be void and inoperative as against a bona fide purchaser for value and without notice. Defendant avers that said automobile was brought into Mobile County, Alabama, and such conditional sales contract or chattel mortgage was not recorded within three months from the time that the automobile was first brought into the County of Mobile, State of Alabama. Defendant avers that he was a bona fide purchaser for value and without notice of the alleged conditional sales contract or chattel mortgage at the time he purchased the car. The Defendant further avers that the federal tax lien was superior to any lien claimed by the Plaintiff and the sale by the United States of America to the Defendant extinguished any interest or lien which the plaintiff might have had in said automobile; hence, Plaintiff ought not to recover."

Apparently the drafter of Pleas 4 and 5 was in doubt as to whether the instrument under which the plaintiff was thought to claim the right to possession of the suit automobile was a conditional sales contract or a chattel mortgage, but later concluded that the instrument was a conditional sales contract because the references to "chattel mortgage" and to § 123 of Title 47, Code, were amended out of original Pleas 4 and 5 by the use of ink except in two instances. The words "chattel mortgage" remain in the thirtieth line of Plea 4 and in the twenty-fourth line of Plea 5 as set out above. It may be that counsel for the defendant overlooked those words in the pleas indicated above when he was amending the pleas in ink, or it could be that the circuit clerk failed to strike those words in copying Pleas 4 and 5, as amended, into the...