Gluck v. Cox

Decision Date27 June 1890
PartiesGLUCK v. COX ET AL.
CourtAlabama Supreme Court

Appeal from circuit court, Tuscaloosa county; S. H. SPROTT, Judge.

An action of detinue brought by appellees, George W. Cox and others, against appellant, Herman Gluck, sought to recover 30 barrels of sugar. Defendant claimed as purchaser at a sheriff's sale, the sugar being levied on together with other goods, under an execution against George W. Cox. There was judgment for plaintiffs, and defendant appeals.

A B. McEachin and Wood & Wood, for appellant.

J M. Martin and Cochran & Fitts, for appellees.

CLOPTON J.

The action, brought for the recovery of chattels in specie, was originally commenced in the name of Mrs. Cox as sole plaintiff. In consequence of the decision of this court on the former appeal to the effect that, on the case as presented by the record then before us, Mrs. Cox acquired but an equitable right, and could not maintain detinue, the complaint was amended by joining her husband, G. W. Cox, as co-plaintiff, and by adding another count. The count added avers that the sugar sued for was a part of the statutory separate estate of Mrs. Cox created under the laws of Mississippi, and sets forth the statute of that state creating separate estates of married women. Neither count of the complaint states the person from whom, or the manner in which, her separate estate was derived; but this is not requisite. The form of a complaint for the recovery of chattels in specie prescribed by the Code contains no averment that the property is in the plaintiff. It has been ruled that a complaint pursuing the prescribed form must be understood as asserting such interest in the subject-matter of the suit as may be recovered in that action by the plaintiff, stated in the margin of the complaint. If on the trial, the evidence fails to establish such interest the question is resolved into one of variance between the allegations of the complaint and the proof. Pickens v. Oliver, 29 Ala. 528. We must therefore construe the complaint as averring that Mrs. Cox has an interest in the subject-matter of the suit. Section 2892, Code 1876, corresponding with section 2577 of the present Code, declares: "Husband and wife must be joined, either as plaintiffs or defendants, when the wife has an interest in the subject-matter of the suit, unless the suit relate to her separate estate, when she must sue and be sued alone." The latter clause of the section having uniformly been construed to relate exclusively to separate estates created under the statutes of this state, and it appearing from the complaint that Mrs. Cox has an interest in the subject-matter of the suit, under the first clause of the section, she and her husband should be joined as plaintiffs. It was expressly so decided in King v. Martin, 67 Ala. 177, and Bush v. Garner, 73 Ala. 162; the last case being a suit for cotton which was the separate estate of the wife under the laws of Mississippi. The complaint does not disclose a misjoinder of plaintiffs or counts.

Defendant interposed a demurrer to the evidence, and now insists that such demurrer in actions of this kind is unauthorized, under the provisions of the Code. The insistence is based on section 2746, which, by its terms, is limited to actions on contracts. It was not intended to abolish the existing and established right to demur to the evidence in other civil actions. The section was incorporated in the Code of 1852, and has been brought down through the successive Codes to the present, without alteration. Since its first introduction, demurrers to the evidence have been allowed as matter of right in all civil cases. After having voluntarily invoked and exercised the right, and permitted the case to proceed to the rendition of judgment on the demurrer, defendant cannot complain in this court, for the first time, of irregularities in the proceedings not objected to in the trial court. In such case the presumption will be indulged that the irregularities were waived. Armstrong v. Armstrong, 29 Ala. 538; Curtis v. Daughdrill, 71 Ala. 590; Martin v. State, 62 Ala. 241. The judgment entry is silent as to a joinder in the demurrer, but the record shows that the demurrer was argued by counsel for plaintiff and defendant, and the court pronounced judgment thereon without objection. In this state of the record, it will be presumed that there was a formal joinder, or that it was waived.

The statute declares the effect of a demurrer to the evidence to be "an admission by the party demurring of the truth of the evidence demurred to, and of every inference and conclusion which a jury could legally deduce therefrom; and devolves on the court the determination of the issue of fact between the parties, as well as the law." Code, § 2747. The court is bound to render judgment against the demurrant if the jury, in the exercise of their function to determine the weight and sufficiency of the evidence, and to draw inferences and conclusions therefrom, could legally have found a verdict against him. Every fact and circumstance disclosed by the evidence has a legitimate tendency to show plaintiff's right to recover. Drawing the conclusions from the evidence which could have been legally drawn by a jury, the court could do nothing less than render judgment against the defendant, unless Mrs. Cox's right to the property sued for is cognizable only in a court of equity, or she has a separate estate in the property created under the laws of this state,-which we proceed to consider. The contention that her right is purely equitable is based on the following facts: The plaintiffs resided, and were married, in Mississippi, in November, 1865. Shortly after their marriage, and while residents of that state, Cox made to his wife a deed of gift to personal property amounting in value to $6,000. The property was sold, and the money loaned to him by his wife. After passing through several mutations, a part of the proceeds of the sale was invested, in 1882, in the purchase of 30 barrels of sugar, being the property sued for, while residing in Alabama. When this case was before the court on the former appeal, it was ruled that Mrs. Cox, by the deed of gift from her husband, made while they were residents of Mississippi, acquired but an equitable right. There was no proof of the law of Mississippi, and the ruling was based on the presumption, in the absence of such proof, that the common law prevailed in that state, by which the husband could not convey to...

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6 cases
  • Hopkins v. Nashville, C. & St. L. R. R.
    • United States
    • Supreme Court of Tennessee
    • March 20, 1896
    ...inferred therefrom; otherwise, the adverse party is not bound to join in the demurrer." The practice is also recognized in Gluck v. Cox, 90 Ala. 331, 8 So. 161. The constitution of Florida provides, viz.: "The of trial by jury shall be secured to all, and remain inviolate forever." Yet this......
  • Hopkins v. Nashville, C. & St. L. Ry.
    • United States
    • Supreme Court of Tennessee
    • March 20, 1896
    ...inferred therefrom; otherwise, the adverse party is not bound to join in the demurrer." The practice is also recognized in Gluck v. Cox, 90 Ala. 331, 8 South. 161. The constitution of Florida provides, viz.: "The right of trial by jury shall be secured to all, and remain inviolate forever."......
  • Mobile Light & R. Co. v. Portiss
    • United States
    • Supreme Court of Alabama
    • November 11, 1915
    ...... of the evidence, and of every inference and conclusion which. a jury could legally deduce therefrom, and submits to the. court the determination of the issue of fact between the. parties as well as the law. Code 1907, § 5343; 6 Mayf.Dig. 373, § 102; Martin v. State, 62 Ala. 240; Gluck. v. Cox, 90 Ala. 331, 8 So. 161; Cent. R. & B. Co. v. Roquemore, 96 Ala. 236, 11 So. 475; Curtis v. Daughdrill, 71 Ala. 590; Armstrong v. Armstrong, 29 Ala. 541; Foster v. McDonald, 5. Ala. 376; McGehee v. Greer, 7 Port. 537. . . In. Young v. Foster, 7 Port. 423, for the first ......
  • Southeastern Greyhound Lines v. Berrie
    • United States
    • Alabama Court of Appeals
    • May 18, 1943
    ...jury was as to the amount of damages to be awarded the plaintiff." McCarty v. Williams, 212 Ala. 232, 102 So. 133, 135, citing Gluck v. Cox, 90 Ala. 331, 8 So. 161; Maund v. Loeb, 87 Ala. 374, 6 So. 376. Here, as in the McCarty v. Williams case, from the opinion in which the last hereinabov......
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