Kyle v. Caravello

• Decision Date: 04 May 1894
• Parties: KYLE v. CARAVELLO.
• Court: Alabama Supreme Court

15 So. 527

103 Ala. 150

KYLE v. CARAVELLO.

Supreme Court of Alabama

May 4, 1894

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by Ralph Caravello against J. C. Kyle for damages for conversion. Judgment for plaintiff. Defendant appeals. Reversed.

This suit was brought by the appellee, Ralph Caravello, against J C. Kyle, the appellant, and was commenced on October 2, 1891. The complaint contained but one count, and was in the following language: "The plaintiff claims of the defendant two hundred dollars, due, for that heretofore, to wit, 1889, he pledged to defendant one gold watch and chain of the value of two hundred dollars for a loan of thirty ($30) dollars, and defendant, disregarding his agreement with plaintiff, refuses to deliver said watch and chain to plaintiff, though plaintiff has tendered the amount ($30) with interest thereon, obtained from defendant, and demanded said watch and chain before bringing this, his suit." The judgment entry was in the following language: "This day came the plaintiff by his attorney, and, the defendant saying nothing in bar or preclusion as to plaintiff's right of recovery, it is therefore considered by the court that the plaintiff ought to recover; but, not being advised as to the just amount of damages sustained, the court proceeds to hear the evidence without the intervention of a jury, according to law, and, after hearing the same, assesses the plaintiff's damages for the property sued for, viz one gold watch and chain, alternate value assessed at two hundred dollars. It is therefore considered by the court that the plaintiff have and recover of the said defendant the said property sued for, viz. one gold watch and chain, or its alternate value of two hundred dollars, together with all the costs in this behalf expended, for which execution may issue." Within 30 days after the judgment was rendered the defendant moved the court to set aside the same, and to grant him a new trial, among others upon the following grounds: "(4) Because the damages awarded on the trial are grossly in excess of damages plaintiff is entitled to recover, should he be successful in establishing his cause of action; and (5) because the judgment of the court is contrary to law." In support of this motion the defendant filed two affidavits. One of these affidavits was made by the defendant himself, and was to the effect that he had a good defense to the action, but that, through a mistake, his attorney was not present, and, further, that the watch and chain sued for were not worth over $100. The other affidavit was that the watch and chain were not worth over $100. This motion was overruled, and the defendant duly excepted. The present appeal is prosecuted by the defendant, who assigns as error the judgment rendered in the cause, and the overruling of his motion for a new trial.

Garrett & Underwood, for appellant.

Sumter Lea, for appellee.

BRICKELL C.J.

1. The Code prescribes the form of a complaint in an action for the conversion of chattels, intended to be a substitute for the declaration in the common-law action of trover. When employed, the action in practice is denominated trover, and is governed by the rules applicable at common law to that action. The forms of pleading appended to the Code have the force of law, and it is declared that any pleading conforming to these forms substantially is sufficient. Code, § 2665; Crimm v. Crawford, 29 Ala. 623. If it be true that the complaint is not drawn formally, and is subject to demurrer, the defects are not now available. The defendant appeared, and, without demurrer or other objection to the sufficiency of the complaint, pleaded the general issue thereafter submitting to a judgment nil dicit. The judgment cannot on error be assailed because of the defects of the complaint, if it contain a substantial cause of action. Code, §...