Giddens & Co. v. Rutledge

• Court: Alabama Supreme Court
• Writing for the Court: DENSON, J.
• Citation: 146 Ala. 232,40 So. 759
• Decision Date: 28 April 1906
• Parties: GIDDENS & CO. v. RUTLEDGE.

40 So. 759

146 Ala. 232

GIDDENS & CO.
v.
RUTLEDGE.

Supreme Court of Alabama

April 28, 1906

Appeal from Circuit Court, Montgomery County; J. C. Richardson, Judge.

"To be officially reported."

Action by Giddens & Co. against Florence Rutledge. Judgment for defendant, and plaintiffs appeal. Affirmed.

This was an action begun by plaintiffs against defendant in the justice court to recover some cows and calves. The justice rendered judgment for the plaintiffs, and the defendant, having allowed the five days to elapse without taking an appeal, applied to the judge of probate for a certiorari to carry the case to the Montgomery circuit court, where the cause was tried and judgment rendered for the defendant. The certiorari bond was executed in the amount prescribed by the judge of probate. The plaintiffs moved the court to require the defendant to give an additional or other bond, basing their contention on the ground that the bond was only for $100, and that the costs in the case had already reached the sum of $200. The court denied the motion, and from a judgment for defendant and the denial of the motion, this appeal is prosecuted.

Goodwin & McIntyre, for appellants.

Hill, Hill & Whiting, for appellee.

DENSON, J.

The plaintiffs' witness, Dan Stewart, having testified on his examination in chief that the cows "never at any time belonged to the defendant," it was competent for the defendant, after laying the predicate, as she did, to prove by Webster that Dan Stewart told him in December, 1901, that he could not sell the red cow, Hattie, because she belonged to his sister-in-law, Florence Rutledge (the defendant). This was not substantive evidence of title or lack of title, but was proper evidence to be considered by the jury, in connection with the other evidence, in determining the credibility of Stewart's testimony. It was a discrediting circumstance. The court put this limitation upon it, and there was no error in admitting it, limited as it was.

The only other assignment of error insisted upon relates to the refusal of the court to require the defendant (appellee) to make an additional certiorari bond. The motion to require the additional bond was rested solely upon the ground that the penalty of the bond was only $100 and the costs at the time the motion was made had reached the sum of $215. The plaintiffs obtained judgment for the possession of the cows sued for, and, having executed a replevy bond on the failure...