Vines v. Vines
| Decision Date | 18 January 1906 |
| Citation | 40 So. 84,145 Ala. 679 |
| Parties | VINES v. VINES ET AL. |
| Court | Alabama Supreme Court |
Appeal from City Court of Bessemer; B. C. Jones, Judge.
"Not officially reported."
Action by J. C. Vines against L. B. Vines and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.
Pinkney Scott, for appellant.
W. S. Welch, for appellees.
In order for the plaintiff to maintain trespass for taking personal property, he must have had the actual possession or the immediate right to the possession. Joseph v. Henderson, 95 Ala. 213, 10 So. 843; Davis v. Young, 20 Ala. 151.
The pleas numbered 4, 5 and 6 to which the demurrers were overruled, simply put the question of plaintiff's possession or right to immediate possession of the property levied on in issue, and as the pleas set up a good defense, the demurrers thereto were properly overruled. If the defense could have been proved under the general issue, it would have been error without injury to have sustained the demurrers, but this court has never held that it is error to overrule a demurrer to a plea that sets up a good defense. L. & N. R. R. Co. v. Hall, 131 Ala. 161, 32 So. 603.
This case was tried on the 14th of June, 1904, and the bill of exceptions was signed on September 8, 1904, during the next term of court. The extension of time was by agreement of counsel. Acts 1901, § 7, p. 1858, provides that, "there shall be one term each year beginning the 1st day of September and ending the last day of June." The bill of exceptions could not have been lawfully signed during a succeeding term of court and must be stricken. Abercrombia & Williams v. Vandiver, 140 Ala. 228, 37 So. 296; Cooley v. U.S. S. & L. Association, 132 Ala. 590, 31 So. 521. Rules of Practice for Circuit and Inferior Courts No. 30, Code 1896, p. 1200.
The judgment of the city court is affirmed.
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