Hester v. Hall

• Decision Date: 04 February 1919
• Docket Number: 8 Div. 563
• Citation: Hester v. Hall, 17 Ala.App. 25, 81 So. 361 (Ala. App. 1919)
• Parties: HESTER v. HALL.
• Court: Alabama Court of Appeals

81 So. 361

17 Ala.App. 25

HESTER v. HALL.

8 Div. 563

Court of Appeals of Alabama

February 4, 1919

Rehearing Denied March 18, 1919

Appeal from Circuit Court, Franklin County; C.P. Almon, Judge.

Suit in justice court by W.P. Hall against Claude Hester.From judgment for plaintiff, defendant appealed to the circuit court, where the cause was there tried by the court without a jury, with a like result, and defendant appeals.Reversed and rendered.

William Stell, of Russellville, for appellant.

William H. Key, of Russellville, for appellee.

BRICKEN J.

Suit was brought in the justice of the peace court by appellee against appellant for damages for killing two hogs by running over them with an automobile.From judgment for plaintiffdefendant appealed to the circuit court, and the cause was there tried by the court without a jury, resulting in judgment again being rendered against defendant.

The evidence is without material conflict, and shows that appellant, while driving his automobile at a rate not greater than 10 to 15 miles an hour over the public highway, ran over and killed two small hogs of the value of $5, the property of plaintiff.The evidence is also undisputed that the hogs were not in the public road at the time the automobile turned the curve around the store of appellee, some 50 yards distant from the place of the accident, but that they were on the outside of the road, and just as the automobile got even or alongside of the hogs they suddenly darted into the road and under the car, which resulted in their being killed.

At the conclusion of the testimony, defendant moved the court to exclude the evidence and render judgment for the defendant on the ground that plaintiff had failed to make out a case.This motion was overruled, and the court rendered judgment against the defendant for $25.This judgment was made and entered on June 26, 1917.On August 28, 1917, the defendant appealed from said judgment, and on that date filed an appeal bond as required by law.After the appeal bond had been perfected, and on September 21, 1917, the court, upon motion of plaintiff, amended the judgment formerly rendered by reducing the amount thereof to $5.The action of the court in this respect was error, as the court had been divested of all jurisdiction of said case when the appeal from its judgment had been perfected.De Bardeleben v. State,77 So 979.

An automobile is not excluded from the...