Motlow v. Johnson

• Decision Date: 09 May 1907
• Parties: MOTLOW v. JOHNSON.
• Court: Alabama Supreme Court

44 So. 42

151 Ala. 276

MOTLOW v. JOHNSON.

Supreme Court of Alabama

May 9, 1907

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by Thomas L. Johnson, prosecuted after his death by M. B Johnson, as executor, against Spoon Motlow. From a judgment for plaintiff, defendant appeals. Affirmed.

See 39 So. 710.

Goodhue & Blackwood, for appellant.

George D. Motley, for appellee.

DOWDELL J.

This suit was commenced by Thomas L. Johnson against Spoon Motlow to recover money lost and paid by the plaintiff to the defendant on a bet or wager made on the result of a primary election held under the laws of this state. After the institution of the suit the plaintiff died, and the cause was revived in the name of Minter B. Johnson as executor, etc.

The first contention of the appellant, defendant in the court below, is that the action is not of the class that survives upon the death of the party, and therefore could not be prosecuted in the name of the executor; the theory being that the action is not one on a contract, express or implied, or a personal action, and therefore not within the provisions of the statute. We are of the opinion that this contention is without merit. Section 35 of the Code of 1896 provides as follows: "All actions on contracts express or implied all personal actions except for injuries to the person or reputation, survive in favor of and against the personal representatives." The suit here was brought under the provisions of section 2163 of the Code of 1896, authorizing the recovery of money paid which was lost on a wager. The action is essentially a personal action, and manifestly does not fall within the exception mentioned in section 35.

The next contention is that interest on the money so lost and paid is not recoverable; the theory of the contention being that the suit is one for the recovery of a penalty. This contention, we think, is without merit. There is nothing in the nature of a penalty in the case. It is true that, but for the statute, the suit could not be maintained; but no penalty or punishment is put upon the defendant. He is not required to part with that which belonged to him, but to return to the plaintiff that which he received from the plaintiff without any consideration. It is money which the law ex æquo et bono considers as belonging to the plaintiff.

The third and last contention of the appellant is that the evidence failed to make out...