Gossett v. Morrow

• Decision Date: 04 June 1914
• Docket Number: 665
• Citation: 187 Ala. 387,65 So. 826
• Parties: GOSSETT et al. v. MORROW.
• Court: Alabama Supreme Court

65 So. 826

187 Ala. 387

GOSSETT et al. v. MORROW.

No. 665

Supreme Court of Alabama

June 4, 1914

Appeal from Circuit Court, Blount County; W.W. Haralson, Judge.

Detinue by Mrs. C.M. Morrow against Frank Gossett and others. Judgment for plaintiff, and defendants appeal. Affirmed.

The following were the charges refused to defendants:

1. If any one else is interested in the property, then Mrs Morrow cannot recover.

7. If defendants in this case were not in the possession of the property sued for when this suit was brought, then your verdict must be for defendants.

The following charges were given for plaintiff:

1. If the jury are reasonably satisfied from the evidence in this case that plaintiff sold certain parts of the property sued for in this action to J.E. Brown, and the said Brown never sold same to J.L. Addington, or put same into the alleged partnership of the A. & B. Mercantile Company, then your verdict must be for plaintiff, for this part of the property.

2. It is not necessary in this case for the plaintiff to recover that she show that there was no such partnership existing at the time plaintiff sold the said property as the A. & B. Mercantile Company; it is only necessary that the jury should find from the evidence that the A. & B Mercantile Company never acquired any title to the property sued for in this action.

3. If the jury believe from the evidence in this case that Brown purchased the property sued for in this action, or any part thereof, in his own name, and not for the alleged partnership of the A. & B. Mercantile Company, and never sold said property to said alleged partnership, or put it in said alleged partnership as his part of the assets of said partnership, then plaintiff would be entitled to recover such part of said property as was purchased by said Brown from plaintiff, although you may believe from the evidence that there was a partnership existing at the time between Addington and Brown, and known as the A. & B. Mercantile Company.

Charge 14 refused to defendants is as follows:

I charge you that, if you believe from the evidence that the property in controversy was the property of the A. & B Mercantile Company at the time of the sale to E.A. Morris then you must find for defendants.

Allen & Bell, of Birmingham, for appellants.

O.A. Steele, of Oneonta, and Ward & Weaver, of Birmingham, for appellee.

McCLELLAN J.

Detinue, by appellee against appellants, to recover saw and planer mill machinery, etc. As originally instituted, the action was against Frank Gossett and E.M. Glenn. By amendment, G.L. Elliott was made a party defendant. Next, the plaintiff took "a nonsuit as to the defendant E.M. Glenn," and the court dismissed the cause as far as E.M. Glenn was concerned; judgment for his cost being rendered. There was, in substance, plea of the general issue by the remaining defendants Gossett and Elliott; and the cause proceeded to verdict and judgment against them. There was evidence, notably by the witness Frank Gossett, that he was in possession of the machinery in suit at the time the action was commenced. Hence neither the general charge for the defendants nor special charge numbered 7, both refused to defendants, could have been properly given on the theory that there was no evidence tending to show the possession of defendants at the commencement of the suit. Detinue is an action ex delicto. It is not ex contractu. While the plaintiff's right it would assert may arise out of a contract, it is not an action on the contract. The gist of the action is wrongful detention. It will only lie against one, or more that one, in possession at the time suit is commenced. A recovery in detinue, if the right thereto is established, may be had against some only of the defendants to the action.

Detinue being an action ex delicto, a discontinuance or dismissal as to one of several defendants will not discontinue the entire action. Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653.

Furthermore, the evidence is without dispute that Glenn was not in possession of the machinery sued for at the time the suit was commenced. There was, also, evidence tending to show that Elliott was in possession, it may have been with Gossett, at the time the suit was commenced, whether as agent or employé of Gossett is not material in this connection.

Moreover, no question appears to have been raised in the trial as to the asserted discontinuance because of the dismissal of the action against Glenn.

There is argument in brief for appellants that is not based on proper, serviceable exceptions shown by this bill of exceptions. Under the heading of proposition "three," it is insisted that the court erred, in its oral charge, in respect of damages recoverable for the hire or use of the property. There is no exception reserved as to this matter. Indeed, the only attempt to reserve exception to any parts of the oral charge of the court is in these words:

"The defendant reserved an exception to the court's oral charge with reference to title passing in case Brown agreed to give mortgage for the purchase money and send it back to plaintiff."

And this:

"The defendant reserved an exception to the court's charging the jury to count interest under those notes."

It is manifest that neither of these efforts sufficed to reserve any particular matter or action for review. Exceptions to parts of the oral charge of a court must be taken with respect to the language of the court. Otherwise, as here appears, what was intended to be excepted to would very often be clouded in doubt. An exception to a subject only, treated in an oral charge, is too indefinite and uncertain to present any question for review. Accordingly, the matter of propositions 5 and 10 of the briefs, as well as that numbered 3, are not supported by properly reserved exceptions so as to justify review.

...