Rand v. Gibson

• Citation: 19 So. 533,109 Ala. 266
• Parties: RAND v. GIBSON.
• Decision Date: 06 February 1896
• Court: Supreme Court of Alabama

19 So. 533

109 Ala. 266

RAND v. GIBSON.

Supreme Court of Alabama

February 6, 1896

Appeal from circuit court; Colbert county; Thomas R. Roulhoc, Judge.

Detinue by Edgar Rand against James S. Gibson. There was a judgment for defendant, and plaintiff appeals. Reversed.

The appellant, plaintiff in the lower court, held a mortgage on 13 bales of cotton raised in Lawrence county, Ala. The appellee, James S. Gibson, who was a resident of Lawrence county, took the 13 bales of cotton into Colbert county without authority from any one and was on his way to Memphis in the state of Tennessee, where he was going to dispose of it. He was hauling the cotton from Lawrence county to Tuscumbia, and there had arranged with the railroad company to ship it to Memphis, Tenn. When the plaintiff discovered that the appellee was carrying the cotton to Memphis to dispose of it, he found him in Colbert county with the cotton in his possession, and he there, in Colbert county instituted the present statutory action of detinue against him to recover possession of the cotton. He made the affidavit and bond as required by the statute, and had the sheriff to seize it. The defendant filed a plea in abatement alleging that he was, at the time the suit was instituted, a resident citizen of Lawrence county, Al., and had a permanent place of residence therein. The plaintiff filed three replications, which are as follows: (1) The action in this suit is not a contract and does not come under the influence of section 2640 of the Code of Alabama. (2) That at the time this suit was instituted the defendant was in Colbert county and had the property sued for in his possession, and was unlawfully withholding it from the plaintiff, and was taking it out of the state to dispose of it, and the only way the plaintiff had to protect himself was by action of detinue under the statute. (3) That the action in this case is not on a contract, but is an action ex delicto for the wrongful detention of plaintiff's property, which the defendant had possession of in Colbert county, and was unlawfully withholding from the plaintiff at the time the suit was instituted. The defendant filed an answer to the replication but the court against the objection of the plaintiff permitted the defendant to withdraw the answer and file demurrers to the replication. The defendant then demurred to the replication, assigning two grounds of demurrer: (1) That said replications are no answer to said plea, and present no material issue which can be traversed. (2) That said replications present no fact, upon which a material issue could be joined. The court sustained the two grounds of the demurrer, and the plaintiff duly excepted. The plaintiff then filed other replications, alleging that the defendant had started out of the state with plaintiff's property and had gotten as far as Colbert county, that he was insolvent and plaintiff would have lost his property, if he had been forced to return to Lawrence county to sue him. The court, on motion of the defendant, struck these replications from the file, to which ruling of the court the plaintiff excepted. The plaintiff then moved the court to allow him to amend the complaint by making the M. & C. Railroad Company and Jesse Moody parties defendant. The court then asked if these parties had any claim to the property other than as common carriers, and on it being stated that they had no other claim, refused to allow the plaintiff to amend the complaint, and plaintiff excepted. The defendant then proved his residence to be in Lawrence county. Plaintiff offered to prove that at the time the suit was instituted, defendant was in Colbert county with the cotton, and was on his way to Memphis, Tenn.; but the court, on the objection of defendant, refused to allow the proof to be made, and plaintiff excepted. The court then sustained the plea in abatement and rendered judgment for the defendant, to which ruling the plaintiff excepted. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Kirk &amp Almon, for appellant...