Martin v. Davis, 7 Div. 118.

Decision Date17 March 1932
Docket Number7 Div. 118.
Citation141 So. 667,224 Ala. 648
PartiesMARTIN v. DAVIS.
CourtAlabama Supreme Court

Rehearing Denied May 26, 1932.

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Action of detinue by Ben Davis, Jr., doing business as the Auto Loan Company, against Fannie Martin and husband. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals.

Affirmed.

Motley & Motley, of Gadsden, for appellants.

Frank J. Martin and Inzer, Inzer & Davis, all of Gadsden, for appellee.

ANDERSON C.J.

This was an action of detinue for an automobile, the plaintiff relying upon a certain instrument in writing in support of his title against the two defendants who are husband and wife. The theory of the defense was that the wife, and not the husband, owned the car, and that the instrument relied upon by the plaintiff was not signed by the wife. These issues were submitted to the jury and found against the defendants.

The appellants complain of error upon the part of the trial court in not sustaining their plea of usury. It is sufficient to say that the defendants got the benefit of this plea by an amended one which was practically the same as the one to which the demurrer was sustained as well as by the proof and the verdict of the jury. In other words, the jury ascertained the amount due upon the mortgage or conditional sale contract to be only $300, which excluded any interest.

As to whether or not Martin or his wife owned the car was one of the issues in the case, and what he said as to his ownership when negotiating the loan with plaintiff's agent was part of the res gestæ. Moreover, the trial court limited this evidence as to Martin and excluded it as having any bearing upon the wife.

True this being an action of detinue and the instrument showing title coming in collaterally, the defendants had the right to require proof of the execution of same without a sworn plea denying the execution of same, but we think that the plaintiff conformed to the rules of evidence in proving the execution of same by Mrs. Martin. The signature of Martin to the instrument was not questioned, nor was there objection on the part of Mrs. Martin that the execution of the instrument by her was not established by the best evidence; the ground of objection being that the execution as to the wife was "not proven." It was proven, that is, the expert testimony as to the similarity of...

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3 cases
  • Hinton & Sons v. Strahan
    • United States
    • Supreme Court of Alabama
    • June 27, 1957
    ...in issue, furnished legitimate ground of comment in argument to the jury by the opposite party. * * *' To like effect, see Martin v. Davis, 224 Ala. 648, 141 So. 667; Wheeler Motor Co. v. Stringer, 222 Ala. 494, 133 So. 10. The issue in the instant case was whether defendant had furnished a......
  • Lambert v. State
    • United States
    • Supreme Court of Alabama
    • May 13, 1937
    ...174 So. 298 234 Ala. 155 LAMBERT v. STATE. 1 Div. 947Supreme Court of AlabamaMay 13, 1937 . ...First Nat. Bank,. 229 Ala. 406, 157 So. 446; Martin v. Davis, 224 Ala. 648, 141 So. 667. In Kirby v. Brooks, ......
  • Lawrence v. Tennessee Valley Bank
    • United States
    • Supreme Court of Alabama
    • March 24, 1932
    ......692 LAWRENCE v. TENNESSEE VALLEY BANK. 8 Div. 379.Supreme Court of AlabamaMarch 24, 1932 . ... infirmity." Thereafter defendant filed plea 7. . . Appellant's. first insistence for error ......

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