Scott v. Parker

• Decision Date: 14 April 1927
• Docket Number: 6 Div. 876
• Citation: 216 Ala. 321,113 So. 495
• Parties: SCOTT v. PARKER.
• Court: Alabama Supreme Court

113 So. 495

216 Ala. 321

SCOTT v. PARKER.

6 Div. 876

Supreme Court of Alabama

April 14, 1927

Rehearing Denied June 2, 1927

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Action in detinue by W.E. Parker against J.B. Harmon, with disclaimer by Harmon and interpleader by Pinkney Scott as real party defendant. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Pinkney Scott, of Bessemer, pro se.

Estes &amp Smithson, of Bessemer, for appellee.

THOMAS J.

The suit in statutory form was detinue for the car; there was interpleader, and under the replevy bond it was with the defendant. The pleading was in short by consent; hence we need not consider the ruling on the pleas.

The parties in interest, by interpleader, were before the court. Cloud v. Dean, 212 Ala. 305, 102 So. 437; Marsh v. Mutual Life Ins. Co., 200 Ala. 438, 76 So. 370; Stewart v. Sample, 168 Ala. 270, 53 So. 182.

The complaint sufficiently identified the "touring car" sued for by its motor number and name of the maker thereof, with "Fox steering wheel." The demurrer was properly overruled.

The rights to discovery at law under the statute were considered in Russell v. Bush, 196 Ala. 309, 71 So. 397; and that to be timely the objections and motion must be brought to the attention of the court before entering on the trial. Collins v. M. & O.R. Co., 210 Ala. 234, 97 So. 631. The evidentiary effect thereof is contained in Ala. Power Co. v. Bodine, 213 Ala. 627, 105 So. 869. The bill of exceptions, so far as it discloses the action complained of, was taken after the trial was entered upon. That is, that the motion at said time called to the attention of the court that other answer was required and asked by interrogatories propounded under the statute. Code of 1907, § 4049; § 7764 et seq., Code of 1923; Ala. Power Co. v. Bodine, 213 Ala. 627, 105 So. 869. This was too late. However, the court permitted additional answer to be made by way of exhibits. There was no error in ruling as to this motion.

There was no error on the predicate shown, in denying a continuance for witnesses Neal and W.C. Steele. The former was indicated to have been temporarily or permanently out of the state, and the attachment was issued for W.C. Steele, who "was absent from court." (The bill of exceptions showed that W.C. Steele testified for defendant.) It is not indicated when this action by the court was invoked--whether before or after entering upon the trial. So, of the request for order to produce the convict Powell, who was incarcerated in Kilby Prison at Montgomery at the time request therefore was made, no timely effort is shown to obtain the depositions of said convict as a material and necessary witness in the case in the manner required by law; §§ 3656, 7734, et seq., Code of 1923, operating a change as to common-law writ of habeas corpus ad testificandum. Ex parte Brown, 206 Ala. 528, 91 So. 306; State ex rel. Reese v. Montevallo Mining Co., 18 Ala.App. 697, 92 So. 926; Turner v. State, 19 Ala.App. 698, 98 So. 926; Attorney General's Report 1920-22, p. 316.

The reasonable rental for the detention of the car was a matter of damages that may be inquired of and given by plaintiff as a witness. The length of the ordinary use of that car, or such car for private purposes, was a tendency of and material evidence which with the other evidence entered into the element of value; its condition, use, and value of the car sued for was for the consideration of the jury, so that its market value and that for its detention may be found by the jury. To such facts the witnesses were allowed to testify after showing knowledge and experience thereof. Hill Groc. Co. v. Caldwell, 211 Ala. 34, 99 So. 354.

We have examined the several objections and exceptions made and reserved on the introduction of plaintiff's or defendant's original evidence and find no error. In plaintiff's rebuttal evidence the witnesses Howton and Dephonzo Parker were properly permitted to testify that they checked the motor number on the car in question with the bill of sale from the Bush Motor Car Company, and it was the same. Pacific Fire Ins. Co. v. Burnett, 212 Ala. 287, 102 So. 214; Amer. Auto Ins. Co. v. Carson, 212 Ala. 293, 102 So. 219.

The evidence showed the bill of sale and contract of plaintiff for the purchase of the car from Bush Motor Company and that the purchase price was paid. It was loaned to a third person to go to Birmingham and there to be delivered to another for return to plaintiff. The tag on the car, when it was delivered to Powell in Birmingham to return to the owner, was the same tag that was purchased by Willie Parker. Thereafter, without the knowledge or consent of the plaintiff, the car was in the possession of the original defendant, who refused to surrender the same; hence the suit. It is further shown that the defendant did not purchase a license tag for it in 1925, using the tag of Willie Parker; that plaintiff gave no permission to rent, lease, or sell the car; and that he had not parted with the title thereto. There was evidence of its reasonable market value and use.

Defendant moved that the verdict and judgment be set aside on the grounds that the verdict could not be lawfully corrected in form or substance after its return; that "the jury was permitted to be separated without the consent of the defendant, and in the absence of the trial judge, or any court official, and left for public and open discussion with all parties over one full night and pending a recess of the court for more than 12 hours without instructions of any kind from the court, under their belief that they had rendered their verdict in the case and then discussed the case with sundry and diverse persons"; that the action of the court in respects thereto was "not authorized by law"; that "The verdict is one that was not rendered by the jury and could not be rendered by the jury until the last request of the court,

which was done without any formal motion, and entirely upon the suggestion of counsel for the plaintiff in this case, therefore this verdict is not the verdict of the jury."

The recital of the bill of exceptions as to the agreement of the parties or counsel as to the receipt of the verdict by the clerk was as follows:

"*** The parties agreed in open court for clerk to receive the verdict and the court to put it in form.

"Thereupon the jury having returned a verdict during the night and then separated, on the following morning, when court opened, the following occurred:

" 'Mr. Estes: Now we ask that the jury be sent out and finish preparing the verdict and write a verdict; it is imperative that they assess the value of the car.

" 'Mr. Scott: We object to it.

" 'The Court: There was an agreement that the verdict be put in form. The twelve jurors in the W.E. Parker case against Harmon come around, please.

" 'The Court: Gentlemen, in submitting this case to you yesterday, I instructed you that if you found a verdict for the plaintiff to assess the value of the car--the reasonable cash market value of the car--and you failed to do that in your verdict. So I will send you back and ask you to fix the reasonable market value of the car and put that in your verdict.'

"Thereupon defendant, in open court, and before the jury retired, duly reserved an exception to the court's sending the jury back to the jury room to bring in another verdict, and as grounds for said objection and exception set down and assigned the following: That the court on the following day after the verdict was rendered and received, by agreement of counsel in the cause in open court, called the jury back and reinstructed them to retire and make up a different verdict to the one that was rendered by the jury, there being no excuse or cause shown by any paper filed, motion in arrest of judgment, motion for nunc pro tunc, or any other record or certificate to authorize the court to bring the jury back and to so instruct them against their verdict, and instructing them to render a verdict different to that already rendered; and defendant objected to the jury further deliberating on the case.

"The court then asked the jury to retire and make up their verdict; and to this action of the court the defendant there and then, in open court, duly reserved an exception."

There are authorities, pro and con, in other jurisdictions on the question now presented. That is to say, general authorities to the effect that a judgment in a civil case may be corrected (within the session of the court) in substance as well as in form, though the jury may have been permitted for a time to separate. Mr. Chief Justice Gray said in Commonwealth v. Tobin, 125 Mass. 203, 206 (28 Am.Rep. 220):

"In this country, by way of substitute for a privy verdict, and to attain the same end of allowing the jury to separate after they have come to an agreement, a practice has been adopted in civil actions, and in cases of misdemeanors, at least, if not of all but capital crimes, of directing the jury, if they should agree during the adjournment of the court, to sign and seal up their finding, and come in and affirm it at the next opening of the court; but the verdict which determines the rights of the parties, and is admitted of record, and upon which judgment is rendered, is the verdict received from the lips of the foreman in open court. When the jury have been permitted to separate after agreeing upon and sealing up a verdict, there is this difference between civil and criminal cases: In a civil action, if the written verdict does not pass upon the whole case, or the jury refuse to affirm it, the court may send them out again, and a fuller or different verdict afterwards returned will be good.

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