Nelson v. Howison
| Decision Date | 07 February 1899 |
| Citation | 122 Ala. 573,25 So. 211 |
| Parties | NELSON v. HOWISON. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Bibb county; John Moore, Judge.
Detinue by Allen P. Howison against Frank Nelson. The complaint was in the following language: "The plaintiff claims of the defendant the following personal property, to wit: One wet pan, one engine, one boiler, and the appurtenances belonging to the said engine, boiler, and wet pan, with the value of the hire or use thereof during the detention, viz. since October 1, 1895." To this complaint the defendant demurred, upon the grounds (1) that there is contained therein no description or mark of identification of any of the property sued for; (2) that the description of said property is vague, uncertain, and indefinite, and that said property is incapable of identification from said description. This demurrer was overruled, to which ruling the defendant duly excepted. The cause was tried upon issue joined upon the plea of non detinet. Upon the trial of the cause the plaintiff offered in evidence of a mortgage executed to him by one John Eharker, to secure the payment of an indebtedness by the mortgagee to the plaintiff, in which mortgage was included the property here sued for, and which is described therein as follows: "One wet pan, one engine, one boiler, and all appurtenances belonging to the engine, boiler, and wet pan, and all the tools used in making brick at said yard." This mortgage was duly executed and acknowledged, and recorded in the office of the probate judge of Bibb county. The defendant objected to the introduction in evidence of said mortgage, on the grounds that the description of the property conveyed therein was too indefinite. The court overruled this motion, allowed the mortgage to be introduced in evidence, and to this ruling the defendant duly excepted. It was shown by the evidence of the plaintiff that a portion of the mortgage debt still remained unpaid. the tendencies of the evidence, and the facts pertaining to the rulings of the court upon the evidence to which exceptions were reserved, are sufficiently stated in the opinion. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe from the evidence that the partnership was in possession of the property sued for at the commencement of this suit, then they will find for the defendant." (2) "If the jury believe from the evidence that John Eharker abandoned the possession of the property sued for, then he lost any right to remove the same and that the plaintiff has no greater right than said Eharker had." (3) "The court instructs the jury that the partnership, the Nelson Firebrick Company, is not sued, and that the defendant is not sued as a member of said partnership, and that if the jury believes from the evidence that said Frank Nelson was not in possession of the property sued for on the 18th day of September, 1895, they will find for the defendant." (4) "If the jury believe the evidence, they must find for the defendant." (5) "The court charges the jury the original taking of property is not the gist of this action, but it is the unlawful detention, and that detinue can only be maintained against the party in possession at the time suit is brought and if the jury believes from the evidence that the Nelson Firebrick Company, and not Frank Nelson, was in possession of the property at the time this suit was brought, then they must find for the defendant." (6) "If the jury believe from the evidence that the property sued for was, at the time the suit was brought, in the possession of E. B Nelson, and that he was acting for the Nelson Firebrick Company in holding and controlling said property, and that said Nelson Firebrick Company was a partnership composed of the defendant and another, then they must find for the defendant." There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. Affirmed.
W. S. Cary, for appellant.
Logan & Van De Graaff, for appellee.
This action is in detinue, and the complaint describes the property recovered in the judgment appealed from as one engine and one boiler. Such description, tested by former adjudications of this court, was sufficiently definite, and the demurrer to the complaint was properly overruled. Haynes v. Crutchfield, 7 Ala. 189; Thompson v. Pearce's Adm'r, 49 Ala. 210.
The plaintiff claims through an unsatisfied chattel mortgage executed to him by John Eharker in 1884, to...
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...was such as would put a third person on inquiry, which, if pursued would have resulted in identification. The court cited Nelson v. Howison, 122 Ala. 573, 25 So. 211, where a description of "one engine and one boiler" was held adequate; and Desany v. Thorp, 70 Vt. 31, 39 A. 309, 310, where ......
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