Larkin v. Baty

• Decision Date: 19 November 1895
• Citation: 111 Ala. 303,18 So. 666
• Parties: LARKIN v. BATY.
• Court: Alabama Supreme Court

18 So. 666

111 Ala. 303

LARKIN v. BATY.

Supreme Court of Alabama

November 19, 1895

Appeal from circuit court, Jackson county; James A. Bilbro, Judge.

Trial of right of property on claim thereto interposed by Mrs. L E. Baty on execution being thereon by W. R. Larkin under a judgment against the claimant's husband. From a judgment for the claimant, plaintiff in execution appeals. Affirmed.

The appellant, W. R. Larkin, recovered a judgment against W. E Baty on a promissory note. Execution was issued on this judgment, and levied upon two cows. The appellee, L. E. Baty wife of the defendant in execution, interposed her claim to the cows levied upon, and there was thereupon instituted a trial of the right of property to said cows. The facts disclosed upon the trial of such claim suit are sufficiently stated in the opinion. After verdict and judgment for the plaintiff, there was, as stated in the opinion, a motion for a new trial. One of the grounds of this motion, in addition to those stated in the opinion, was that one of the jurors who tried the claim suit was a brother to the surety on the claim bond of the claimant. The motion for a new trial was overruled, and the plaintiff duly excepted. The present appeal is prosecuted by the plaintiff, who assigns as error the several rulings of the trial court upon the evidence, the rendition of judgment rendered for the claimant, and the overruling of the motion for a new trial.

J. E Brown, for appellant.

HEAD J.

This was a statutory trial of the right of property, on a claim interposed by the appellee to the property levied on under an execution on a judgment rendered against the husband of the claimant. Of the two cows levied on as the property of the defendant in execution, one of them was acquired by purchase by him of the plaintiff in 1889; and the other was the offspring of this one, calved after January 20, 1890, the date of the inception of claimant's alleged title. The question at issue, and to which all the evidence seems to relate, was whether or not this mother cow had been sold by the husband, W. E. Baty, to his wife, the appellee, on or about January 20, 1890, so as to effect a change of ownership from him to her. Upon this question the evidence was conflicting. The jury decided the issue in favor of the claimant, and the court below declined, on motion of the plaintiff, to set the verdict aside. The evidence for the claimant tended to show that about January 20, 1890, it was agreed between the claimant and her husband that, in consideration of the sale of the cow to her, she would assume the payment of his indebtedness to the family physician, amounting to more than the value of the cow; that this creditor agreed to look to her for payment of his demand, and to let her pay it in work for his wife and family; and that from that time she had continually claimed the cow as hers, and the husband had not claimed to own it. She afterwards paid the bill in full. The cow and its offspring were kept and used at the family residence in Larkinsville. The plaintiff's evidence tended to show that the defendant in execution still claimed to own the cow after the date of the alleged sale to the wife. The plaintiff obtained judgment against the defendant in February, 1893, on a demand which is described in the complaint as a bond executed by the defendant January 2, 1891, and the levy was made in March, 1893. The assignments of error relate to the several rulings of the court in admitting certain evidence against the objection of the plaintiff, and to the ruling of the court in refusing to set aside the verdict and grant a new trial, to which exceptions were reserved.

1. One of the witnesses for the claimant testified that she "had a conversation with Mrs. Baty about them [the cows] in 1891, in which she said the cows belonged to her. This declaration was made to me at her house, and one time in the cotton field before this suit was commenced." The plaintiff objected to the evidence of the conversation in the cotton field, and moved to exclude it, without specifying any grounds of objection or grounds for the motion to exclude. Hence, unless the evidence is patently illegal or irrelevant the exception should not be considered. Rule of practice, 90 Ala. ix., 9 South iv.; Bates v. Morris, 101 Ala. 282, 13 So. 138. Manifestly, this evidence was offered as explanatory of claimant's possession of the property in controversy, and that it was competent for such purpose is well established. McBride v. Thompson, 8 Ala. 650-653; 1 Brick. Dig. p. 558; 3 Brick. Dig. p. 419, § 189. "The husband and wife lived together, and, of necessity, had a community of possession. *** Under...