Bolton v. Cuthbert

• Decision Date: 21 January 1902
• Citation: 31 So. 358,132 Ala. 403
• Parties: BOLTON v. CUTHBERT ET AL.
• Court: Alabama Supreme Court

31 So. 358

132 Ala. 403

BOLTON v. CUTHBERT ET AL.

Supreme Court of Alabama

January 21, 1902

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Action by Van L. Cuthbert and another against John S. Bolton. From a judgment for plaintiffs, defendant appeals. Reversed.

Thornton & Inge, for appellant.

G. L. &amp H. T. Smith, for appellees.

TYSON J.

Action of detinue. There are two parties plaintiff, both of whom testified as to the manner of their acquisition of title to the mules in controversy. Their evidence showed affirmatively, and without dispute, that one Vaughn was a joint owner with them of the property, and that they had never acquired his interest. "It is well settled in this state that, to entitle the plaintiffs to recover in the action of detinue, they must have the entire interest in the thing sued for; they must have the absolute property, with the right to the immediate possession, or a special property as in the case of a bailee." Price v. Talley's Adm'rs, 18 Ala. 21; Thomason v. Silvey, 123 Ala. 694, 26 So. 644; Vinson v. Ardis, 81 Ala. 271 2 So. 879. The burden is on the plaintiff to show an exclusive legal title to the chattel sued for; "and should it appear that he was not a tenant in common or a joint tenant with another, and that the legal title was in both, then both must join in detinue; for one alone cannot, under such circumstances, sustain the suit." Parsons v. Boyd, 20 Ala. 112. The cases of Russell v. Russell, 62 Ala. 48, Smith v. Tankersly, 20 Ala. 212, 56 Am. Dec. 193, and Perminter v. Kelly, 18 Ala. 716, 54 Am. Dec. 177, cited by appellees' counsel as opposed to this principle, were actions of trover. Under the authority of those cases, an action by one tenant in common against his co-tenant can only be maintained where there is a conversion, wholly to his own use, by the tenant sued, by a sale of the chattel. Clearly, there is no conflict between the two lines of cases.

It is contended that the defendant cannot avail himself of the nonjoinder of Vaughn as party plaintiff under the plea of the general issue; that he should have filed a plea in abatement. The ownership by plaintiffs of the entire interest in the mules is of the very essence of their right to maintain the action, and, as the general issue denied their title and right to the immediate possession of them, there was no necessity for a plea in abatement. It is of no consequence that Vaughn had left the state or declined to allow the use of his name as party plaintiff. The plaintiffs had the right to prosecute the action in the name of all jointly interested in the property sought to be recovered, whether Vaughn was willing or not, upon indemnifying him against costs. Harris v. Swanson, 62 Ala. 299. Having this right, it was their duty to join him, and they must suffer the consequences of their neglect.

It may be said that, as the bill of exceptions does not purport to set out all of the evidence, the overruling by the court of the motion of defendant to exclude all of plaintiffs' evidence, on the ground that it showed without conflict that at the time of the institution of this suit the title to the property sued for was in some one else besides the plaintiffs, will be sustained upon the presumption, usually indulged, that there was evidence to support the ruling. While this court has gone very far in indulging this presumption to sustain the judgment below, where charges are involved, it has never extended it to a case where evidence was improperly admitted or excluded. Torrey v. Burney, 113 Ala....