Richardson v. Mertins

• Decision Date: 17 February 1912
• Citation: 175 Ala. 309,57 So. 720
• Parties: RICHARDSON ET AL. v. MERTINS.
• Court: Alabama Supreme Court

57 So. 720

175 Ala. 309

RICHARDSON ET AL. v. MERTINS.

Supreme Court of Alabama

February 17, 1912

Appeal from City Court of Montgomery; William H. Thomas, Judge.

Action by Minnie Reese Richardson and another, by next friend against J. A. L. W. Mertins. From a judgment for defendant plaintiffs appeal. Affirmed.

Ball &amp Samford, for appellants.

G. F. Mertins and Steiner, Crum & Weil, for appellee.

SOMERVILLE J.

The plaintiffs sued the defendant in trover for the conversion by her on or about November 25, 1908, of certain chattels, the property (as alleged) of plaintiffs. The summons describes the plaintiffs as "minors who sue by M. R. R., as next friend." In the caption to the complaint they are described as "M. R. R. and C. R. by M. R. R., as next friend." The defendant's pleas were as follows: "(1) The general issue. (2) The defendant for answer to the complaint saith: That the plaintiffs' cause of action, if any they had, is barred by the statute of limitations of six years. (3) The cause of action of the plaintiffs, or of those under whom they claim, accrued more than six years prior to the bringing of this suit. (4) The property for the conversion of which this suit was brought came into the possession of the defendant if at all under claim of right more than six years prior to the institution of this suit. Wherefore," etc. A demurrer was interposed to these pleas collectively on the grounds that the complaint showed that the plaintiffs were minors when the suit was instituted, and that the statute of limitations would not begin to run against them until they were of age. This demurrer was overruled, and error is separately assigned for overruling the demurrer to plea 2, to plea 3, and to plea 4.

However, counsel do not argue these assignments of error other than by asserting that the demurrer was improperly overruled. This, under the practice and rulings of this court, must be treated as a waiver of the assignments.

The plaintiffs filed four replications to these pleas, collectively, as follows: "(1) That they had no knowledge of the conversion by the defendant of the property sued for until on or about the date named in the complaint. (2) That, even if the allegations of said pleas are true, they were minors at the time of the filing of this suit. (3) That they had no knowledge of the whereabouts of the property sued for until November, 1908, although they made diligent efforts to ascertain the location of said property which was fraudulently withheld from them by one Wm. Pullium from whom defendant obtained them directly or indirectly. (4) That the defendant came into the possession of the property sued for by and through one William Pullium, who had no authority to sell or dispose of said property, and that in the disposition of said property by said Pullium he was guilty of embezzlement by which a fraud was practiced on them, of which they had no knowledge until about the time named in the complaint and suit was filed in less than a year from said time."

The judgment entry shows that the court sustained defendant's demurrers to these replications, but the demurrers are not set out in the record. In such a case this court always presumes in support of the judgment that the demurrer properly stated a valid objection to the pleading, if any there be.

The only question argued by appellants' counsel is the sufficiency of the second replication, and so we shall not consider the several assignments of error relating to the first, third, and fourth replications.

The second replication offers as an answer to all the pleas collectively, the single fact that plaintiffs "were minors at the time of the filing of this suit." If this fact is not a good defense to each and...