Hall v. Nix

• Citation: 156 Ala. 423,47 So. 335
• Parties: HALL v. NIX.
• Decision Date: 30 June 1908
• Court: Alabama Supreme Court

47 So. 335

156 Ala. 423

HALL v. NIX.

Supreme Court of Alabama

June 30, 1908

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Trover by Ed. Nix against F. Y. Hall. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The facts are sufficiently stated in the opinion of the court. The court refused a charge to defendant that, if the jury believe the evidence, they cannot find judgment against defendant for more than $40.90, for interest and damages. He gave a charge for plaintiff to find for the plaintiff, if they believe the evidence, for $124.90 and interest.

W. A Jordan, for appellant.

Espey &amp Farmer, for appellee.

DENSON J.

Plaintiff filed interrogatories to the defendant (who is a resident of the state), in conformity with the statute (Code 1896, § 1850). On May 4, 1907, on motion of the plaintiff, a judgment by default was entered by the court against the defendant for failure to answer the interrogatories. The proof made on the motion is recited in the judgment entry, and covers every fact necessary to be shown under the statute to give the court jurisdiction to render the judgment. The proof being sufficient, and the rendition of the judgment being a matter within the discretion of the court, the action by the court in rendering the judgment cannot be successfully assailed here.

After the judgment by default was entered, the court properly ordered the execution of a writ of inquiry to ascertain the plaintiff's damages. The plaintiff's right of recovery being established by the judgment, the only questions presented by the bill of exceptions, proper to be considered by us, are those relating to damages. Curry v Wilson, 48 Ala. 638; Washington County v Porter, 128 Ala. 278, 282, 29 So. 185.

The case is trover for the conversion of two diamond rings which, as the proof showed, were sold by the plaintiff to the defendant, in November, 1905, "at the value of $225." The contract of sale is in writing, and is set out in the bill of exceptions. The amount agreed to be paid for the rings was to be paid in monthly installments, and the title was reserved in the plaintiff until the entire purchase price should be paid. It is shown without conflict in the evidence that the defendant purchased other items of goods from plaintiff on account; that these items, together with the price agreed to be paid for the rings, amounted to $309; that defendant had paid plaintiff various sums at different times, but without giving any instructions as to the application of the payments; that plaintiff applied the payments to the account until the same was fully paid, and then credited the balance over ($104.60) on the debt for the rings; that, after giving the credit as stated, there remained due on the rings $124.90, besides interest. The defendant not having directed the application of the sums paid, it was the right of the...