Cole v. Propst

• Decision Date: 29 October 1898
• Citation: 24 So. 884,119 Ala. 99
• Parties: COLE v. PROPST ET AL.
• Court: Alabama Supreme Court

24 So. 884

119 Ala. 99

COLE v. PROPST ET AL.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Fayette county; S. H. Sprott, Judge.

Claim suit between W. H. Cole, as plaintiff, and Propst Bros., as claimants. Judgment for claimants. Plaintiff appeals. Reversed.

This was a statutory trial of the right of property. The appellant, W. H. Cole, recovered a judgment against one Fowler in a justice of the peace court. Upon this judgment execution was issued, and levied upon a certain horse in the possession of the defendant, Fowler. Thereupon the appellees Propst Bros., interposed a claim to the property so levied upon, and upon this the issue formed for the trial of the claim suit. The cause was tried in the justice of the peace court, resulting in damages in favor of the plaintiff. From this judgment the claimants appealed to the circuit court. On the trial in the circuit court, the plaintiff introduced a judgment, execution, and levy on the horse, and proved the possession of the horse in the defendant at the time of the levy. D. F. Propst, one of the claimants, as a witness testified that, before the levy of the execution upon the horse in question, Propst Bros. sold a certain horse to the defendant, Fowler, on credit; that at the time of the sale there was an understanding and agreement that the title to the horse was expressly reserved to Propst Bros. until the purchase price was paid; but that it was further agreed between the parties that said Fowler should have a right to trade the horse, according to his best judgment, and that each of the several horses he should get in exchange was to belong to, and be the property of, the claimants. The defendant, Fowler, as a witness for claimants, testified to substantially the same facts to which the witness D. F Propst had testified. During the examination of the witness Fowler, he was asked the following question by the plaintiff's attorney: "Did you trade the horse Propst Bros. sold you, and also the several horses you received, by continuing to trade the animals [horses or mules] severally coming into your hands from continuing to trade, as the horses or mules of Propst Bros.?" To this question the claimants objected, on the ground that it called for illegal and irrelevant evidence. The court sustained this objection, and the plaintiff duly excepted. Upon the introduction of all the evidence, the court, at the request of the claimants,...