Daniel v. Hardwick

CourtSupreme Court of Alabama
Writing for the CourtCLOPTON, J.
Citation7 So. 188,88 Ala. 557
Decision Date08 January 1890
PartiesDANIEL v. HARDWICK.

7 So. 188

88 Ala. 557

DANIEL
v.
HARDWICK.

Supreme Court of Alabama

January 8, 1890


Appeal from circuit court, Cherokee county; JOHN B. TALLY, Judge.

Action of detinue by Emily E. Hardwick against Joseph S. Daniel, for the recovery of a horse and buggy and harness. The plaintiff was a married woman, the wife of G. L. Hardwick, and the property was claimed as belonging to her statutory separate estate. Defendant, as sheriff of Cherokee county, took it under an execution on a judgment against G. L. Hardwick, her husband, in favor of Ayer & McDonald. The defendant pleaded the general issue, and two special pleas. Upon the evidence, as adduced on the trial, the court charged the jury, ex mero motu: "If it be true that the husband bought the buggy and harness for her, and executed their joint notes, and was afterwards paid for out of her money, then the buggy and harness were hers, and she could recover the buggy and harness." To this charge the defendant excepted, as also to the refusal of the court to charge the jury, at his request, that, "if the jury believe the evidence, they will find for the defendant." From a verdict and judgment for the plaintiff, the defendant now appeals, and assigns the rulings of the court on pleadings and evidence, and the giving of the charge, and the refusal to give the charge asked by him, as error.

Burnett & Smyer, for appellant.

Watts & Son, for appellee.

CLOPTON, J.

The complaint in an action of detinue brought by a married woman, need not allege specially the fact as to how and when she acquired title to the property; these are proper subjects of proof. A general averment that the property sued for is her statutory separate estate is sufficient.

The defendant filed two special pleas, justifying under legal process. The first avers, substantially, that he took possession of the property as sheriff under execution, issued from the circuit court of Cherokee county, in favor of Ayer and McDonald against G. L. Hardwick, which execution was in his hands at the time of its seizure, and that the property was in his possession as sheriff. The second plea is still more general. A plea of justification should show a process regular on its face, and issued by competent authority. The description of the process should be sufficiently certain and particular to identify it, and, when it is against a person other than the party claiming and suing, there should be an averment that the property taken was the property of the defendant in the process, or that it is liable thereto. A plea of justification, to be sufficient, must set forth matter which, if proved, would constitute a full defense to the action. Harrison v. Davis, 2 Stew. (Ala.) 350. Each of the pleas is defective in these material respects.

After the demurrer to the special pleas had been sustained, the defendant failed to specially plead over, and the parties went to trial on the general issue. On the trial, defendant offered in evidence a judgment in favor of Ayer and McDonald against the husband of plaintiff, and an execution thereon, being the same under which he took the property. Under the Code, the general issue merely...

To continue reading

Request your trial
13 practice notes
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...12 A. L. R. 251; Rhodes v. McWilson, supra; Barrett v. City of Mobile, 129 Ala. 179, 30 So. 36, 87 Am. St. Rep. 54; Daniel v. Hardwick, 88 Ala. 557, 7 So. 188; Finch's Executors v. Alston, 2 Stew. & P. 83, 86, 23 Am. Dec. 299; Milman v. Dolwell, 2 Campbell (Lord Ellenborough) 378, 379; Will......
  • Bradford v. Buttram, 8 Div. 333
    • United States
    • Alabama Supreme Court
    • April 21, 1921
    ...by the husband with the proceeds of the corpus of the wife's statutory separate estate (Daffron v. Crump, 69 Ala. 77; Daniel v. Hardwick, 88 Ala. 557, 7 So. 188; Nettles v. Nettles, 67 Ala. 599; Kennon & Bro. v. Dibble, 75 Ala. 351; Reeves v. McNeill, 127 Ala. 175, 28 So. 623). On her claim......
  • Southern Cotton Oil Co. v. Harris
    • United States
    • Alabama Supreme Court
    • January 18, 1912
    ...fails to show that the writ of attachment was ever returned into court. Olmstead v. Thompson, 91 Ala. 130, 8 So. 755; Daniel v. Hardwick, 88 Ala. 557, 7 So. 188; Womack v. Bird, 63 Ala. 500. Moreover, the defendants had the benefit of the facts attempted to be set up in said plea by pleas 5......
  • Bryan v. Day, 1 Div. 712.
    • United States
    • Supreme Court of Alabama
    • December 22, 1932
    ...justification. The rule in this respect has been mentioned in several of our cases, which we need merely here cite. Daniel v. Hardwick, 88 Ala. 557, 7 So. 188; Olmstead v. Thompson, 91 Ala. 130, 8 So. 755; West v. Hayes, 120 Ala. 97, 23 So. 727, 74 Am. St. Rep. 24; Gillespie v. McCleskey, 1......
  • Request a trial to view additional results
13 cases
  • Kuykendall v. Edmondson, 8 Div. 424.
    • United States
    • Supreme Court of Alabama
    • October 12, 1922
    ...12 A. L. R. 251; Rhodes v. McWilson, supra; Barrett v. City of Mobile, 129 Ala. 179, 30 So. 36, 87 Am. St. Rep. 54; Daniel v. Hardwick, 88 Ala. 557, 7 So. 188; Finch's Executors v. Alston, 2 Stew. & P. 83, 86, 23 Am. Dec. 299; Milman v. Dolwell, 2 Campbell (Lord Ellenborough) 378, 379; Will......
  • Bradford v. Buttram, 8 Div. 333
    • United States
    • Alabama Supreme Court
    • April 21, 1921
    ...by the husband with the proceeds of the corpus of the wife's statutory separate estate (Daffron v. Crump, 69 Ala. 77; Daniel v. Hardwick, 88 Ala. 557, 7 So. 188; Nettles v. Nettles, 67 Ala. 599; Kennon & Bro. v. Dibble, 75 Ala. 351; Reeves v. McNeill, 127 Ala. 175, 28 So. 623). On her claim......
  • Southern Cotton Oil Co. v. Harris
    • United States
    • Alabama Supreme Court
    • January 18, 1912
    ...fails to show that the writ of attachment was ever returned into court. Olmstead v. Thompson, 91 Ala. 130, 8 So. 755; Daniel v. Hardwick, 88 Ala. 557, 7 So. 188; Womack v. Bird, 63 Ala. 500. Moreover, the defendants had the benefit of the facts attempted to be set up in said plea by pleas 5......
  • Bryan v. Day, 1 Div. 712.
    • United States
    • Supreme Court of Alabama
    • December 22, 1932
    ...justification. The rule in this respect has been mentioned in several of our cases, which we need merely here cite. Daniel v. Hardwick, 88 Ala. 557, 7 So. 188; Olmstead v. Thompson, 91 Ala. 130, 8 So. 755; West v. Hayes, 120 Ala. 97, 23 So. 727, 74 Am. St. Rep. 24; Gillespie v. McCleskey, 1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT