Ex parte Allen

• Decision Date: 26 February 1910
• Citation: 166 Ala. 111,52 So. 44
• Parties: EX PARTE ALLEN.
• Court: Alabama Supreme Court

52 So. 44

166 Ala. 111

EX PARTE ALLEN.

Supreme Court of Alabama

February 26, 1910

Petition by H. K. Allen for certiorari. Writ denied.

B. G Perry and W. S. Welch, for petitioner.

Pinkney Scott, opposed.

McCLELLAN J.

Common-law certiorari.

If the theory of the petitioner is maintainable, as it is presented in this application, viz., that the judgment assailed is void, and if it is of record apparent, common-law certiorari is the proper remedy to review and annul the judgment. Independent Pub. Co. v. Amer. Press Co., 102 Ala 475, 490, 15 So. 947.

These are the facts: Pinkney Scott instituted detinue against the petitioner, Allen, in the Bessemer city court. His complaint was: "The plaintiff claims of the defendant the following personal property, to wit, one large bay horse named John, with tail whipped off, with the value of the hire or use thereof during detention, to wit, from the 31st day of August, 1909." The summons was served on the defendant on August 31, 1909, and the direction to take possession of the animal, the plaintiff having given the requisite bond executed. The defendant, in his turn, gave a forthcoming bond, and the property was delivered to him. Defendant, not having pleaded within 30 days after service, was in default on Friday, October 1, 1909. On that day the court permitted the amendment of the complaint. It appears from the whole return, after alias certiorari, that the amendment inserted, after the word "off," and before the words, "with the value," these words: "Valued at $200.00, and plaintiff further claims of defendant the sum of $50 damages and $1 per day." After that amending, the court rendered judgment, by default, for the plaintiff for the horse described in the complaint, "or its alternate value of $200, together with $31 detention and a further sum of $50 damages as further detention assessed by the court to the date of the trial." It thus affirmatively appears, and it is not otherwise contended, that there was no service of the amendment or amended complaint on the defendant, before judgment by default was rendered.

The petitioner, in several ways, invoked the court below to set aside the judgment and to quash the execution, following in orderly course from the judgment--in all of which the petitioner was denied relief--before seeking review here. The first basis of insistence that the judgment is void is that neither the amendment nor the amended complaint was served on the defendant before the default was adjudged. Primarily these principles pertain to the question presented and to be decided.

The measure of damages in the action of detinue is the value of the hire or use of the chattel during the period of wrongful detention. 3 May. Dig. pp. 61, 62. Interest on the value of the hire or use is not an element of the damages in such case. Fralick v. Presley, 29 Ala. 457, 65 Am. Dec. 413. Ordinary wear and tear of the chattel is included in the rent or hire thereof. Hence damages for wear and tear cannot be added to those awarded for rent or hire in such action. White v. Sheffield, 90 Ala. 253, 7 So. 910. Generally speaking, a default only admits matters well pleaded. 23 Cyc. pp. 740, 741, 752, and notes; McGehee v. Childress, 2 Stew. (Ala.) 506.

In this instance the court had jurisdiction of the subject-matter and of the person. The amendment, ex parte, fixed the value of the animal and enhanced (let us assume) the amount of the damages claimed in the original declaration. Taking the...