Russell v. Bellinger

• Decision Date: 30 January 1906
• Citation: 146 Ala. 679,40 So. 132
• Parties: RUSSELL ET AL. v. BELLINGER.
• Court: Alabama Supreme Court

40 So. 132

146 Ala. 679

RUSSELL ET AL. v. BELLINGER.

Supreme Court of Alabama

January 30, 1906

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

"Not officially reported."

Action by W. C. Bellinger against M. M. Russell and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed in part, and in part reversed and rendered.

George D. Motley, for appellants.

Goodhue & Blackwood, for appellee.

HARALSON, J.

The plaintiff sues the defendants, M. M. Russell, A. B. Russell and O. L. Russell, as individuals and as partners, under the firm name of Russell Brothers to recover the sum of two hundred and fifty dollars, for the conversion by defendants, during the year, 1902, of an undivided one-half interest in eight bales of cotton, the property of the plaintiff.

The case was discontinued as to A. B. Russell, not served, and was tried by the court without the intervention of a jury on issue joined on the defendants' plea of the general issue. There was a severance by the defendants in the assignment of errors.

The burden was on the plaintiff to establish the averments of his complaint. There was no evidence that the defendant, O. L. Russell, was a member of the firm of Russell Brothers; that he was a brother of either of the other Russells named, or that he had any thing whatever to do with the conversion of the cotton mentioned in the complaint. Nor was there any evidence of the existence of a partnership such as is mentioned in the complaint. The court rendered judgment against him and also against the partnership named in the complaint. In this there was manifest error. Mudge v. Treat, 57 Ala. 1; McKissack v. Witz, 120 Ala. 412, 25 So. 21.

The evidence satisfactorily sustains the judgment as to the defendant, M. M. Russell; and, proceeding as we may under the special statute relating to the city court of Gadsden, we will correct the judgment of the lower court, by affirming it with costs as to the defendant, M. M. Russell and reversing and rendering it in favor of defendant, O. L. Russell.

Affirmed in part, and reversed and rendered in part.

TYSON, DOWDELL, SIMPSON, ANDERSON, and DENSON, JJ., concur.