Craddock v. Walden

• Decision Date: 18 November 1913
• Citation: 63 So. 534,184 Ala. 58
• Parties: CRADDOCK v. WALDEN.
• Court: Alabama Supreme Court

63 So. 534

184 Ala. 58

CRADDOCK v. WALDEN.

Supreme Court of Alabama

November 18, 1913

Appeal from Circuit Court, Henry County; E.H. Hill, Special Judge.

Claim suit between D.A. Walden, execution plaintiff, and Lonie Craddock. Judgment for plaintiff, and claimant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Reversed and remanded.

Walden recovered judgment against B.F. Craddock, and had execution issued and levied upon one mouse-colored mare mule. Lonie Craddock intervened and filed claim bond and affidavit, and issue was made up by the court. The claimant offered a mortgage executed by Lonie and B.F. Craddock to Malone and Espy Mercantile Company, for $333, covering all the live stock owned by them, and offered to prove the consideration of the mortgage, making known to the court that, if permitted to do so, the consideration was $300 and interest, and that the claimant loaned said money to defendant B.F. Craddock and that the $300, with interest thereon, was a part of the consideration for the bill of sale which B.F. Craddock made to claimant for this particular mule and another mule and cow. The court declined to permit the evidence, and defendant excepted.

Espy &amp Farmer, of Dothan, for appellant.

W.L Lee, of Columbia, for appellee.

ANDERSON J.

It has long since ceased to be an error, or irregularity working a reversal of a judgment that the record does not disclose a formal issue between the parties. The judgment shows that issue was joined between the parties, and a jury tried said issue and found in favor of the plaintiff, and assessed the value of the property, which was ordered sold or condemned to satisfy the plaintiff's judgment.

Nor will the fact that the judgment ordered the property sold or condemned, instead of sold and condemned, operate to reverse the judgment. An error in this respect was but a clerical misprision, amendable upon motion in the circuit court, and would not be cause for reversal here. Gray v. Raiborn, 53 Ala. 40.

The claimant was not entitled to the general charge upon the theory that the plaintiff did not make out a prima facie case because the mule levied upon was not shown to be in the possession of the defendant. The mule was found in the defendant's lot, and the said defendant was presumptively the head of the family. He at least had a community of possession with his wife, and which said possession was not not ousted or placed exclusively in the wife unless she had the legal title to the mule. Anglin v. Thomas, 142 Ala. 264, 37 So. 784. The wife, the claimant, attempted to show title to the mule, but the jury evidently found that she had no title, and that the sale to her by her husband was void. If said sale was void, then the husband had the title and possession,...