Dixie v. Harrison

• Decision Date: 10 June 1909
• Citation: 163 Ala. 304,50 So. 284
• Parties: DIXIE v. HARRISON.
• Court: Alabama Supreme Court

50 So. 284

163 Ala. 304

DIXIE v. HARRISON.

Supreme Court of Alabama

June 10, 1909

Appeal from Circuit Court, Marengo County; W. W. Quarles, Special Judge.

Action by Josh Dixie against W. C. Harrison. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Mayfield J., dissenting in part.

The special pleas are as follows: "(3) That the plaintiff voluntarily surrendered the mule, for which damage is now sought, to the defendant. (4) The plaintiff voluntarily surrendered possession of the mule for which damage is now sought to the defendant, or the agent of the defendant. (5) That defendant sold mule in controversy to one J. M. Moore and took a mortgage on the said mule for the purchase money and that when said mortgage became due the said Moore defaulted in the payment of the same, and that the defendant sent his agent to the said Moore, after the maturity of said mortgage, for the mule, and that the said Moore told his said agent that the plaintiff then had said mule, and for the agent to return the following day and he could get the mule that the said agent did return the day following; that Moore then informed him that the plaintiff had said mule, and to go and get him; that said agent went to the plaintiff, and told plaintiff that he had come for the mule, whereupon plaintiff gave the said agent of the defendant the said mule of his own accord and voluntarily. (6) That the defendant surrendered possession of the said mule to the plaintiff voluntarily, and that prior to any demand for the return of said mule and to the bringing of this suit, and before the defendant knew the plaintiff claimed said mule, the defendant sold said mule, and does not now know where said mule is; that plaintiff surrendered said mule in the first part of the year 1906, and did not make a demand upon defendant for the same until more than six months thereafter."

Motion was made to strike these pleas, and after it was overruled the following demurrers were filed: "(1) The pleas are no defense to this suit. (2) They seek to raise an immaterial issue. (3) Because pleas 4, 5, and 6 set up an estoppel, and do not allege matters that amount to an estoppel. (4) Because plea 5 does not allege that plaintiff had knowledge of the mortgage taken by the defendant to secure the purchase price of said mule, and does not allege that same was recorded before plaintiff purchased said mule. (5) Because pleas 5 and 6 attempt to set up matters of defense that are obnoxious to the statute of frauds. These demurrers being overruled, replications were filed; but it is not deemed necessary to set them out.

George Pegram, for appellant.

Elmore & Harrison, for appellee.

MAYFIELD J.

The complaint in this cause, as last amended, consisted of six counts, designated as 1, 2, 3, 4, A, and B. Counts 1, 2, and 3 were in trespass, for the wrongful taking of one bay mare mule. Count 4 was in trover, for the conversion of the same mule. Counts A and B were also in trespass, count A setting up the facts constituting the trespass. To this complaint defendant filed six pleas; the first two being the general issue, and pleas 3 and 4 attempting to set up the defense that the plaintiff voluntarily surrendered the mule to the defendant. Plea 5 set up that the defendant sold the mule to one J. M. Moore, taking a mortgage thereon for the purchase money, and that, when the mortgage became due, Moore defaulted in its payment, whereupon the defendant sent his agent to Moore for the mule; that Moore told the agent to return the following day, when he could get the mule; that he returned the following day, and Moore then informed him that the plaintiff had the mule and told him to go and get it; that defendant's agent then went to plaintiff and told him he had come for the mule, whereupon the plaintiff, of his own accord and voluntarily, gave the mule to the agent of the defendant. Plea No. 6 was that the plaintiff surrendered the possession of the mule to the defendant voluntarily, and that prior to the demand for the return and the bringing of the suit, and before the defendant knew of the plaintiff's claim, the defendant sold the mule, and did not know where it was; that the plaintiff surrendered the mule in the first part of the year 1906, and did not make demand for the same upon the defendant for more than six months thereafter. The plaintiff moved to strike the special pleas 3, 4, 5, and 6 upon the grounds set up in the motion. The court overruled the motion, and the plaintiff accepted. The plaintiff then demurred to pleas 4, 5, and 6, which demurrers, being duly considered, were overruled by the court. The pleas and demurrers were refiled after the complaint was amended, with the same action, as to the amended complaint and the pleas and demurrers thereto. The trial was had upon the general issue and these special pleas, and resulted in a verdict and judgment for the defendant, from which plaintiff appeals.

There is in the record a brief of the appellee seeking to have the bill of exceptions stricken upon the ground that the case was tried by Wm. W. Quarles, as special judge holding the spring term of the circuit court of Marengo county, who as such special judge had no jurisdiction beyond the territorial limits of Marengo county, whereas said judge while in Selma Ala. (in Dallas county), made and signed an order extending the time for signing the bill of exceptions. There is an affidavit made by Hon. Wm. W. Quarles, setting forth the facts susbtantially as the same are set forth in the brief of appellee. But there is in the record no motion nor copy of a motion which would serve as a basis for this brief; and the writer does not know as a matter of fact whether such a motion was made and afterwards withdrawn. There is no entry on the minutes of this court, nor any motion on its motion docket showing submission upon such a motion; the order of submission showing that the cause was submitted upon the merits merely. It is, however, unnecessary for us to consider whether or not this bill should be stricken, for the reason that the cause must be reversed upon the record proper, even if the bill of exceptions were stricken. The special pleas were each a wholly insufficient answer to the complaint. While they might probably be an answer to some counts of the complaint, they were clearly not an answer to each count of the complaint, and they were directed, and intended as answers, to the entire complaint, and it would not have been error for the court to strike a part of these pleas upon the motion of the plaintiff, though we do not decide that there was reversible error in the court's declining to strike them. But it was clearly reversible error to overrule the plaintiff's demurrers to these pleas; and, as the case must be reversed, we will consider some of the assignments of error which may be of interest and concern to the parties...