Millitello v. B.F. Roden Grocery Co.

• Decision Date: 07 November 1914
• Docket Number: 819
• Parties: MILLITELLO v. B.F. RODEN GROCERY CO.
• Court: Alabama Supreme Court

67 So. 420

190 Ala. 675

MILLITELLO v. B.F. RODEN GROCERY CO.

No. 819

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Claim by V. Millitello to property upon which an execution was levied in aid of a judgment in favor of the B.F. Roden Grocery Company. Judgment for the plaintiffs, and claimant appeals. Transferred from Court of Appeals. Reversed and remanded.

Sayre J., dissenting.

James A. Mitchell, of Birmingham, for appellant.

Thompson Thompson & Bachrach, and Guy M. Thompson, all of Birmingham for appellee.

GARDNER J.

The B.F. Roden Grocery Company obtained a judgment against one Jim Millitello, in the Birmingham court of common pleas, an inferior court with the jurisdiction of a justice of the peace, upon which judgment execution was issued and levied upon certain property claimed by V. Millitello; and, upon such claim being interposed, a trial of the right of property was had in said court as provided by statute (section 6039 et seq. of the Code of 1907), resulting in judgment for the plaintiff, and the claim suit was removed by appeal to the city court of Birmingham, where the trial of the claim suit again resulted in judgment for the plaintiff, from which judgment the claimant prosecutes this appeal.

The cause was transferred to this court under the provisions of Acts of 1911, p. 449.

Plaintiff in the court below tendered what might be termed a "special issue" in the cause, to the effect that the property levied on as the property of Jim Millitello, and which is claimed by V. Millitello, is the property of Jim Millitello, in this, that V. Millitello is the same person as Jim Millitello, and that the claimant, V. Millitello, held himself out to plaintiff as being Jim Millitello, and purchased goods from plaintiff under that name, etc. This tender of issue was stricken by the court on motion.

The plaintiff then tendered the issue as provided by section 6040 of the Code, to the effect that the property levied upon as the property of Jim Millitello, and which is claimed by V. Millitelo, is the property of Jim Millitello, and is liable to the satisfaction of the said writ.

The claimant interposed, in addition to a plea taking issue on the tender, two special pleas, numbered 2 and 3, in which he sought to set up certain matters by way of estoppel, to the effect that the plaintiff was estopped from setting up and now claiming that Jim Millitello and V. Millitello are one and the same person. The substance of these pleas need not now be stated, as it will sufficiently appear in comment upon the testimony subsequently offered upon the question of estoppel, which was excluded by the court. Demurrer to these pleas was sustained.

We recognize the rule In this state that an estoppel relied upon as matter of defense must be specially pleaded. Jones & Co. v. Peebles, 130 Ala. 269, 30 So. 564; 16 Cyc. p. 806.

The following quotation, found in Jones v. Peebles, supra, is in point:

"If a party has opportunity to plead an estoppel, and voluntarily omits to do so, and tenders or takes issue on the fact, he thus waives the estoppel, and commits the matter to the jury, who are to find the truth. *** But if he have not opportunity to show the estoppel by pleading he may exhibit the matter thereof in evidence on the trial under any issue which involves the fact, and both the court and jury are bound thereby."

Likewise apt is the following, from 16 Cyc. p. 806, cited above:

"At common law an estoppel in pais need not be pleaded, but under the statutes of the various jurisdictions it is now almost universally necessary that it should be. If, however, the state of the case is such that the estoppel cannot be pleaded, it may be given in evidence, and in such case it will be equally conclusive as if it had been pleaded."

In the case of Lehman, Durr & Co. v. Warren, 53 Ala. 535, it was held that the only proper issue on the trial of the right of property is an affirmation by the plaintiff in the process that the property levied on is subject to the process, and a denial of the fact by the claimant. Says the court:

"It was never intended the proceeding should be embarrassed by formal pleading, either in the form of complaint, or plea, or replication, or rejoinder. The introduction of such pleading tends only to confusion, and to mar the simplicity of the proceeding, as it is authorized by the statute."

In the case of Warren v. Liddell, 110 Ala. 232, 20 So. 89, it was said that:

"The form of issue on the contest *** is largely within the discretion of the court, is not subject to demurrer, nor governed by the rules of pleading."

We therefore conclude that while, as a general rule, estoppel as a defense must be specially pleaded, yet in the statutory trial of the right of property, where the form of the issue is largely within the discretion of the court, and its substance is prescribed by the statute, the only proper issue is an affirmation by the plaintiff in the process that the property levied on is subject to the process, and a denial of the fact by the claimant, and that in such case, such an issue is sufficient to authorize the plaintiff to introduce evidence of every fact showing the property liable to the process, and the claimant to give evidence of every fact showing that there resides in him a superior right of property.

We are therefore of the opinion that no necessity existed for the special pleas of estoppel, and that error to a reversal cannot be predicated upon the ruling of the court sustaining the demurrer to said pleas.

This brings us to a consideration of the pivotal question in the case--that of the evidence offered by the claimant to show the estoppel, which evidence was, on motion of plaintiff excluded by the court.

For an understanding of the question it is necessary that this proffered testimony be given, which is found principally in that of counsel for claimant, who testified as follows:

"On the 6th day of December, 1912, I went to the Second division of the Birmingham court of common pleas, accompanied by my client, V Millitello, the claimant here. V. Millitello had been served with a copy of the summons and complaint in the case of B.F. Roden Grocery Company v. Jim Millitello No. 14559 on the docket of said court, and I was unable to tell whether V. Millitello was the party sued in that cause or not. Before leaving my office I drew up some pleas to be filed in the said case, and also an affidavit denying the correctness of the account sued on, and had Millitello to make the affidavit on each of the said two papers. Upon arriving at the said court, I found Mr. Guy M. Thompson there as the attorney representing the plaintiff. I told him that the party with me was V. Millitello, and that he had been served with a copy of the summons and complaint in the case of B.F. Roden Grocery Company v. Jim Millitello, but I believed he had the wrong man; however, if Thompson would state to me that this was the man he was suing, I would file pleas in the case and defend it. Thompson replied to me: 'You had better go ahead and file your pleas.' Thereupon, I

filed in the case the pleas and affidavit denying the correctness of the account sued on, which I had prepared and which are in the file, and are in words and figures as follows: [[The pleas are here omitted.] After the filing of the pleas, and before the case was called, Thompson tried to engage V. Millitello in conversation, and showed him some signatures on some writings he had, and asked Millitello if he did not sign those names thereto, which Millitello denied. V. Millitello remained in court with me. When the case was called for trial, the said Guy M. Thompson arose and said to the court: 'V. Millitello has filed some pleas in this case. The plaintiff is not suing him, and I move the court that the said pleas be stricken from the file.' I then said to the court, Judge H.B. Abernethy presiding, that a summons and complaint had been served upon this man V. Millitello, and that the number of his store was indorsed on the back of the summons and complaint as the residence of the defendant; that the plaintiff had told the said V. Millitello, when he asked about it, that he had better make his defense in court; and I also told the court about the conversation I had had with the plaintiff's said attorney before the case was called. And I insisted upon being allowed to make defense for V. Millitello in the case, and said to the court that it might be later contended that Jim Millitello and V. Millitello are one and the same person. Thereupon Judge Abernethy said to me: 'Mr. Thompson says he is not suing your man, and the papers in the case show that he is not suing your man.' The court of common pleas then having intimated that, if the officer's return showed service on the defendant, he ought to enter up judgment for the plaintiff, and I again protested on behalf of V. Millitello, and said to the court that, if a judgment should be rendered in that case against Jim Millitello, an execution issued thereunder might be levied on the goods of V. Millitello; and Judge Abernethy replied: 'If the officer levies on the goods of V. Millitello, he will be liable for damages.' The said court thereupon announced that he would strike the pleadings that I had filed for V. Millitello from the file, and the court refused to allow the said V. Millitello to make defense to said action. I then stated to Judge Abernethy that, if that was his ruling, he should make an entry on his docket to the effect that: 'Pleas filed by V. Millitello are stricken from the file, upon plaintiff's attorney stating to the court that the plaintiff is not suing him.' Judge Abernethy announced from the

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