Cornelius v. Copeland
| Decision Date | 10 January 1963 |
| Docket Number | 8 Div. 84 |
| Parties | Z. H. CORNELIUS v. W. C. COPELAND et al. |
| Court | Alabama Supreme Court |
T. J. Carnes, Albertville, for appellant.
Starnes & Starnes, Guntersville, and Nash & NeSmith, Oneonta, for appellees.
This is a suit by Z. H. Cornelius against W. C. and Bobby Copeland. The plaintiff stated his case against the defendants in two counts. The first count is in detinue, seeking the recovery of particularly described items of gasoline filling station equipment and machinery, while the second count is in trover. The defendants filed pleas of the general issue.
The plaintiff based his title and right of recovery on a mortgage executed to him by one Edward Bellenger, who was deceased at the time of the trial.
Plaintiff rested after making out a prima facie case for recovery under the detinue count by the introduction of his mortgage. A mortgagee, whether of personalty or of real property, when the legal interest has been transferred to him, stands in a court of law in the same situation as if he were the absolute purchaser. The legal title to personal property and the right to immediate possession thereof are sufficient to support the action in detinue. Mervine v. White, 50 Ala. 388. See Pinckard & Lay v. Bramlett, 165 Ala. 327, 51 So. 557. The law day of the mortgage had long since passed.
The defendants offered evidence to the effect that they also held a mortgage on the suit property executed by the said Edward Bellenger. The defendants' mortgage, while executed after the plaintiff's mortgage, was recorded prior to that of the plaintiff. According to the testimony offered by the defendants, they had no knowledge of the plaintiff's mortgage until several months after their mortgage was executed.
After the defendants rested, the plaintiff offered in evidence a deposition of the mortgagor, Bellenger, taken after the commencement of the action, which shows that the defendants did have actual knowledge of the plaintiff's mortgage at the time their mortgage was executed. Counsel for defendants was present at the taking of the deposition. The defendants' objection to the introduction of the deposition was sustained, whereupon the plaintiff moved for a nonsuit with leave to appeal. A judgment of nonsuit was thereafter entered and after it was amended, the plaintiff appealed to this court as authorized by § 819, Title 7, Code 1940. Brown v. Shelby County, 204 Ala. 252, 85 So. 416; Calvert v. J. M. Steverson & Sons Lumber Co., 244 Ala. 206, 12 So.2d 365.
In sustaining the objection the trial court observed: 'Without reading all the deposition I would think a lot of it would not be in rebuttal because it would be very unusual if the whole thing is rebuttal.' We construe the record as showing that counsel for the plaintiff then pointed out to the court that plaintiff had a right to offer the deposition subject to the right of the defendants to object to 'particular testimony,' which the defendants thought not to be admissible. However, the trial court again sustained the defendants' objection
In support of the trial court's ruling the appellees, the defendants below, rely upon out holdings in Hiscox v. Hendree, 27 Ala. 216, and Crutcher v. Memphis & Charleston Ry. Co., 38 Ala. 579, which are to the effect that when an entire deposition is offered in evidence, the court is not bound to separate the legal from the illegal evidence which it contains but may exclude it altogether.
Although counsel for the plaintiff first offered the entire deposition in evidence, and in answer to a question from the...
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Friedman v. Friedman
...property and the right to its immediate possession are sufficient to support an action of detinue. For example, see Cornelius v. Copeland, 274 Ala. 337, 148 So.2d 620 (1963). "One probable reason for any apparent conflict in those two lines of cases was occasioned by a prior code section as......
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Chrysler Credit Corp. v. Tremer, 1 Div. 71
...After default has occurred, a conditional vendor with a legal title is entitled to immediate possession of the chattel. Cornelius v. Copeland, 274 Ala. 337, 148 So.2d 620; Harmon v. Dothan National Bank, 186 Ala. 360, 64 So. 621. It was said in Ballard v. First National Bank of B'ham, 261 A......
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Richardson v. First Nat. Bank of Columbus, Ga.
...was established. The legal title and right to immediate possession are sufficient to support the action in detinue. Cornelius v. Copeland, 274 Ala. 337, 148 So.2d 620; Pinckard & Lay v. Bramlett, 165 Ala. 327, 51 So. Appellants introduced no evidence in denial of plaintiffs title to right t......
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