Bryan v. Day

• Decision Date: 22 December 1932
• Docket Number: 1 Div. 712.
• Parties: BRYAN v. DAY.
• Court: Alabama Supreme Court

145 So. 150

225 Ala. 687

BRYAN v. DAY.

1 Div. 712.

Supreme Court of Alabama

December 22, 1932

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action of trespass and trover by S. R. Bryan against Charles Day individually and doing business as Charles Day Motor Company. From a judgment of nonsuit, plaintiff appeals.

Reversed and remanded.

Defendant's pleas 1 and 2, as answer to each and every count of the complaint, are as follows:

"1. That the plaintiff S. R. Bryan on August 15, 1930 purchased from the defendant one Reo Automobile Model 15 Coupe under a conditional bill of sale, paying the sum of five hundred fifty ($550.00) dollars in cash, and agreeing to pay the sum of eight hundred forty-five ($845.00) dollars in installments of fifty-two and 81/100 ($52.81) dollars each month thereafter; that the said conditional bill of sale contained the provision that should there become due and remain unpaid in whole or in part any of the indebtedness that the defendant might enter any premises where the said automobile was and took possession thereof. The defendant says that the plaintiff was in default in the payment of the said installments and that he had said car locked on the premises claimed by one G. H. Kruempel, who would not permit the defendant to enter the said premises and take possession of the said automobile, though he had a right to do so. Wherefore, the defendant had process issued out of the circuit court of Mobile County, Alabama, to secure the said automobile, and that the sheriff, acting through his deputies, executed said writ and took possession of the said automobile for and on behalf of the defendant; that the defendant acted under the provisions of the agreement had with the plaintiff and under due process of law, as aforesaid. Wherefore the defendant says he is not liable under said count.

"2. The defendant further says in answer to the said count that the plaintiff was in possession of one Reo Automobile Model 15 Coupe, to which the defendant had title, and which was upon the premises of one G. H. Kruempel, who refused to permit the defendant to enter thereon without legal process that the defendant secured legal process out of the circuit court of Mobile County, Alabama, and through such process took possession of the aforesaid automobile. Wherefore, the defendant says that he is not liable to the plaintiff as alleged in said count."

D. P. Moore, of Mobile, for appellant.

Gordon, Edington, & Leigh, of Mobile, for appellee.

FOSTER J.

The first, fourth, and fifth counts of the complaint were laid in trespass to realty, accompanied with the seizure and removal of personal property. The fact of the seizure of personal property does not change the character of the count. Central of Georgia R. Co. v. Barnett, 220 Ala. 284, 124 So. 868.

The second count is in trespass to personalty. To counts in trespass justification must be specially pleaded, and the general issue does not permit proof of justification. Womack v. Bird, 51 Ala. 504; Barrett v. City of Mobile, 129 Ala. 179, 30 So. 36, 87 Am. St. Rep. 54; Burns v. Broughton, 223 Ala. 527, 137 So. 418.

The third count is in trover for the conversion of the same personalty. The general issue to this count permits proof of justification, and no special plea is necessary. Barrett v. City of Mobile, supra; Ryan v. Young, 147 Ala. 660, 41 So. 954; Sullivan v. Miller, 224 Ala. 395, 140 So. 606.

To each of the counts defendant attempted to plead, specially (1 and 2), justification under process issued out of the circuit court of Mobile county executed by the sheriff.

There was no general issue. The court overruled demurrer to the special pleas 1 and 2, and such ruling is assigned as error, and was the basis of plaintiff's nonsuit, and is the only assignment argued in brief.

The pleas seek to avoid liability on the trespass counts on account of the matter set up, and are therefore properly classed as in confession and avoidance as pleas to those counts, but do not expressly confess their allegations. It is claimed that they are defective...