Hoge v. Herzberg
| Decision Date | 21 November 1904 |
| Citation | 37 So. 591,141 Ala. 439 |
| Parties | HOGE v. HERZBERG. |
| Court | Alabama Supreme Court |
Appeal from City Court of Gadsden; John H. Disque, Judge.
Action by L. L. Herzberg, as surviving partner, against John F Hoge. Judgment for plaintiff, and defendant appeals. Affirmed.
This action was brought to recover damages resulting to the plaintiff for having purchased certain cotton from the defendant which the defendant represented to belong to him. The complaint, as amended, contained five counts. The substance of the fifth count is stated in the opinion, and under the decision on the present appeal it is unnecessary to set out at length the other counts of the complaint. To the defendant's plea in abatement, setting up that at the time the action was commenced and at the time of the filing of said plea the defendant had a permanent residence in a county other that Etowah county, wherein the suit was instituted, the plaintiff demurred upon the grounds that the cause of action was ex delicto, and not ex contractu, and that therefore said plea failed to show or allege any facts that authorized the abatement of the suit. This demurrer was sustained. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.
G. C Allen, for plaintiff.
C Daniel, for defendant.
As amended, the complaint in this cause consisted of counts numbered, respectively, 4 and 5. Omitting a statement therein of damages, count 5 is as follows: "The plaintiff claims of defendant the further sum of $150 damages for deceit in the sale of one bale of lint cotton, which the defendant sold to plaintiff as his own property, and at the time of the sale knew to be the property of another, and upon which the owner had executed to Thos. L. Johnson & Co. a mortgage of which defendant had notice; yet defendant sold said cotton as his own, thus deceiving plaintiff, and thereby inducing him to buy said cotton to his injury; and after said sale plaintiff was sued by Thos. L. Johnson & Co. for the conversion of said cotton, and plaintiff says that he gave defendant notice of said suit, and that Thos. L. Johnson & Co. recovered judgment against him for the conversion of said cotton for the sum of to wit," etc. To the action it was pleaded in abatement merely that at the time the action was commenced and when the plea was filed defendant had a permanent residence in a county other than that of suit. This plea was subject to the demurrer thereto interposed. Whatever may...
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...the recital in the judgment that an exception was reserved is unavailing. Dorough v. Harrington, 148 Ala. 305, 42 So. 557; Hoge v. Herzberg, 141 Ala. 439, 37 So. 591. costs are improperly taxed against one not liable to pay them, the proper practice is to raise the question by motion to re-......
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...Williams v. Planters' & Mechanics' Nat. Bank, 91 Tex. 651, 45 S. W. 690; Allen v. Henn, 197 Ill. 486, 64 N. E. 250, 252; Hoge v. Herzberg, 141 Ala. 439, 37 So. 591; State v. Shepphard, 23 Mont. 323, 58 P. 868; Maher et al. v. Shenhall et al., 96 Iowa, 634, 65 N. W. 978; Spriesterbach v. Sch......
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