Seibold v. Rogers

• Court: Supreme Court of Alabama
• Writing for the Court: HEAD, J.
• Citation: 110 Ala. 438,18 So. 312
• Parties: SEIBOLD v. ROGERS.
• Decision Date: 31 July 1895

18 So. 312

110 Ala. 438

SEIBOLD
v.
ROGERS.

Supreme Court of Alabama

July 31, 1895

Appeal from circuit court, Marshall county; John B. Tally, Judge.

Action by Joel E. Rogers against William McKee, for conversion. On the death of defendant the suit was revived in the name of Allen Seibold, administrator of the estate of the deceased. Plaintiff had judgment, and defendant appeals. Reversed.

This was an action of trover, originally brought by the appellee, Joel E. Rogers, against William McKee, for the alleged wrongful conversion by William McKee of one yoke of oxen. On the death of McKee the suit was revived in the name of the appellant, as the administrator of the estate of William McKee, deceased. Issue was joined on the plea of the general issue. The plaintiff based his right and claim to the property alleged to have been converted upon a mortgage executed to him on December 14, 1889, by one J. W. Davis. He offered this mortgage in evidence. J. M. Wilks and J. E. Rogers (the plaintiff) were the attesting witnesses, J. M. Wilks, as a witness on the trial of the cause, testified that he could not write his name, but that the plaintiff signed his (Wilks') name, as an attesting witness, to the mortgage, and "that, as well as witness remembered, he saw Davis sign his name to the mortgage." The evidence showed that the mortgagor had died on August 7, 1890,-prior to the institution of the present suit. The plaintiff, whose name appears as attesting witness to said mortgage, testified that he saw Davis sign the mortgage. The defendant objected to this testimony of the plaintiff because, Davis being dead, plaintiff was incompetent to testify thereto. The court overruled the defendant's objection, and to this ruling the defendant duly excepted. The court, against the objection and exception of the defendant, allowed the mortgage to be read in evidence. There was an indorsement on said mortgage, by the probate judge of Marshall county, certifying that the said mortgage had been filed in the office of the judge of probate of Marshall county. The evidence further tended to show that, subsequent to the execution of the mortgage by Davis, Davis traded the yoke of oxen described in the mortgage to one Boy McKee for another yoke of oxen, and that the defendant's intestate obtained the oxen involved in this controversy from the said Boy McKee. The evidence also tended to show that the yoke of oxen involved in this controversy were worth between $60 and $85. Another of the witnesses for the defendant testified that, prior to the time Davis traded the steers to Boy McKee, Davis resided in Dekalb county, and kept the steers at home in said county, and that Davis moved to Marshall county after he had traded the steers involved in this controversy. The defendant offered in evidence the record of the mortgage, on which the plaintiff's claim was based, in the probate office of Marshall county, which record showed that, wherever the name of the mortgagor appeared in said record, it was "J. W. Cavis," instead of "J. W. Davis." Plaintiff objected to the introduction of said record in evidence because it was irrelevant. The court sustained the objection, and the defendant duly excepted....