Whatley v. Taylor

• Decision Date: 16 October 1924
• Docket Number: 7 Div. 505.
• Parties: WHATLEY v. TAYLOR.
• Court: Alabama Supreme Court

101 So. 590

211 Ala. 655

WHATLEY v. TAYLOR.

7 Div. 505.

Supreme Court of Alabama

October 16, 1924

Appeal from Circuit Court, Randolph County; N. D. Denson, Judge.

Action in detinue by E. K. Taylor against Rufus J. Whatley. From a judbment for plaintiff, defendant appeals. Transferred from Court of Appeals, under Acts 1911, p. 450, § 6. Reversed and remanded.

Hooton & Hooton, of Roanoke, for appellant.

Stell Blake, of Roanoke, for appellee.

MILLER J.

This is an action of detiune for a mule, commenced in the justice of the peace court by E. K. Taylor against Rufus J. Whatley. There was judgment in favor of the defendant in that court and from it, the plaintiff appealed to the circuit court. The circuit court on verdict of a jury rendered judgment in favor of the plaintiff, and from it, this appeal is prosecuted by the defendant.

The plaintiff asked, and the court gave, this written charge to the jury:

"The court instructs the jury that if you believe all the evidence in this case, you will find for the plaintiff."

The defendant asked, and the court refused to give, this written charge to the jury:

"I charge you, gentlemen of the jury, that if you believe the evidence in this case you will find for the defendant."

These charges are assigned as errors, and they are argued and insisted on by the appellant.

To maintain this action of detinue for the mule, the burden is on the plaintiff to prove that, at the time it was commenced he had a general or special property in the mule, or owned it, or had the legal title to it, and the right to the immediate possession of it. If he has never had actual possession of it. If he has never had actual possession of the mule, then he must show a legal title to it with the right to the immediate possession of it in order to recover. Reese v. Harris, 27 Ala. 301; Butler-Kyser Mfg Co. v. Central of Ga. Ry. Co., 190 Ala. 646, 67 So. 393; Griffith & Warren v. Biggers, 206 Ala. 563, 90 So 795; Gwin v. Emerald Co., 201 Ala. 384, 78 So. 758. The plea of general issue is an admission by the defendant of the possession of the mule at the commencement of the suit. Section 1, Gen. Acts, approved February 28, 1911, Acts 1911, p. 33; Griffith & Warren v. Biggers, 206 Ala. 563, 90 So. 795; Kirkland v. Eford, 205 Ala. 72, 87 So. 364.

There is no evidence that plaintiff was ever in actual possession of the mule before the commencement of this action, so in order to recover he must prove a legal title to it with the right to the immediate possession of it. This he attempts to do through an instrument denominated a mortgage from T. E. Shearrer, wife, and W. J. Shearrer, husband, to E. K. Taylor, the plaintiff. This instrument was offered in evidence three times. Objections to it were sustained each time by the court because the execution of it by the mortgagors was not proven. Afterwards the plaintiff proved by the subscribing witness that T. E. Shearrer and W. J.

Shearrer signed it in his...