Clifton v. Gay

• Decision Date: 16 March 1926
• Docket Number: 7 Div. 124
• Citation: 21 Ala.App. 412,109 So. 168
• Parties: CLIFTON v. GAY.
• Court: Alabama Court of Appeals

109 So. 168

21 Ala.App. 412

CLIFTON v. GAY.

7 Div. 124

Court of Appeals of Alabama

March 16, 1926

Rehearing Denied May 25, 1926

Appeal from Circuit Court, Clay County; E.S. Lyman, Judge.

Action in detinue by Roy Clifton against S.J. Gay. From a judgment for defendant, plaintiff appeals. Affirmed.

Walter S. Smith, of Lineville, for appellant.

Pruet &amp Glass, of Ashland, for appellee.

SAMFORD J.

The issue involved in this suit was the title to a cow. The evidence was in conflict, and hence the trial court properly refused all requested written charges requiring affirmative relief. This disposes of assignments 1, 2, and 3.

The plaintiff claimed title through a mortgage executed by E.C Abney and Jim Abney, her husband, on February 24, 1920. The defendant claimed through a mortgage executed by J.F. Abney and A.O. East on January 3, 1920. One of the disputed issues was as to whether the title to the cow was ever in E.C. Abney and another was, even if she had at one time owned the cow she had agreed and consented with defendant on January 2 1920, that her son, J.F. Abney, might mortgage the cow to defendant to secure advances made to J.F. Abney. Refused charge 4 ignores this last phase of the evidence and was properly refused.

The testimony of the witness Shamblee tended to prove title to the cow in question in Henry Abney and not in E.C., as claimed by plaintiff. It also tended to impeach the testimony of plaintiff's witnesses, and for that reason was admissible. This disposes of assignments 5, 6, 7, 8, 9, and 10.

The testimony of the witness Cofield tended to identify the cow owned by Henry Abney as the cow in dispute and the statements of E.C. and Henry at the time testified to, they being then and there in possession, were relevant and legal. This applies to assignments 11, 12, 13, and 14.

Henry Abney was not a party to this suit, and hence any ill feeling which may have existed between Henry and the witness Cofield was irrelevant. This disposes of assignment 15.

The defendant had a perfect right, with the permission of the court, to recall plaintiff, who had testified as a witness in his own behalf, for the purpose of laying a predicate to him. This would not have the effect of making plaintiff defendant's witness. This practice is too well established to admit of doubt. The predicate laid to the witness related to material matter in issue and a contradictory statement made out of court would tend to impeach his testimony. The predicate laid and the question propounded to the impeaching witness were substantially the same. The objection on the ground that the two were not the same was properly overruled. This disposes of assignments 16, 17, 18, and 19.

Admission of E.C. Abney made to defendant on the day before the execution of the mortgage, that the cow belonged to her husband, was relevant; she being in possession of the cow at the time. This disposes of assignments 20, 21, 22, and 23.

It was relevant and legal for defendant, who knew the facts, to testify as to the transaction between himself, J.F. Abney, and E.C. Abney at the time of taking the mortgage, to show the consideration for the mortgage and to identify the cow and the parties. This applies to assignments 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, and 32.

This suit was originally instituted in a justice of the peace court under and by virtue of the rights conferred by section 7389 of the Code of 1923, which section is a part of chapter 282 of the Code of 1923, providing a remedy for the recovery of property in specie, and the entire chapter, as modified or enlarged by the decisions of this and the Supreme Court embraces all the law of statutory...