Williams v. McKissick

Decision Date17 April 1900
PartiesWILLIAMS v. MCKISSICK.
CourtAlabama Supreme Court

Appeal from circuit court, Henry county; J. C. Richardson, Judge.

Action by R. L. McKissick against L. D. Williams. From a judgment for plaintiff, defendant appeals. Reversed.

On June 24, 1893, R. L. McKissick, as appellee, instituted an action of trover against the appellant, L. D. Williams. The complaint then filed contained but one count, which sought to recover $250 damages for the conversion by the defendant on February 17, 1893, of "one sorrel mare mule about ten years old; one 2-horse iron-axle wagon,-the property of plaintiff." To this complaint the defendant filed two pleas. The first plea was the general issue, and the second plea set up as a defense the levy of the writ of attachment upon the property by the defendant in the discharge of his duty as deputy sheriff. A demurrer was subsequently sustained to this second plea. On April 20, 1899, the plaintiff, with the consent of the court, amended his complaint by adding another count thereto, in which he sought to recover the sum of $250 for the conversion by the defendant on December 23 1892, of "one sorrel mare mule about ten years old, the property of plaintiff." To the amended complaint the defendant pleaded that the cause of action set up in said complaint was barred by the statute of limitations. To each of the counts of the complaint the defendant filed a special plea, numbered 3, in which he set up that on December 23 1893, he was the lawful deputy of the sheriff of Henry county, and in that capacity received on said day a writ of attachment sued out in favor of Voorhees, Miller & Co. against S. J. McKissick, commanding the sheriff to levy upon property of the defendant in attachment to satisfy the claim of the plaintiffs; that upon his attempting to make the levy of the attachment upon the property described in the complaint the plaintiff in the present action notified the defendant that he had a just claim to said property, and that thereupon the defendant refused to make the levy until the plaintiff in the attachment suit indemnified the sheriff on account of said levy; that, upon the sheriff being indemnified by the plaintiff in the attachment suit, the said attachment was levied upon said property, which was subsequently sold by the sheriff, and the proceeds of said sale applied to the payment of the judgment recovered by the plaintiffs in attachment against said S. J. McKissick. Issue was joined upon the plea of the general issue and the special plea numbered 3. The testimony for the plaintiff tended to show that the property levied upon under said writ of attachment was the property of the plaintiff, and did not belong to S. J. McKissick; that said writ of attachment was levied upon such property by the defendant in the present suit on December 3, 1892. The plaintiff's evidence fixed the value of the mule at $135 and the value of the wagon at $35 at the time of the levy and seizure. The plaintiff testified that the mule levied upon by the plaintiff was 7 years old at the time of the levy. The defendant then moved the court to exclude all the plaintiff's testimony in respect to the conversion of the mule by the defendant, upon the ground that there was a variance between the pleading and proof as to...

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22 cases
  • Howton v. Mathias
    • United States
    • Alabama Supreme Court
    • 16 d4 Novembro d4 1916
    ... ... under a videlicet (Blair v. Riddle, 3 Ala.App. 292, ... 57 So. 382; Kilgore & Son v. Shannon & Co., 6 ... Ala.App. 537, 60 So. 520; Williams v. McKissack, 125 ... Ala. 544, 27 So. 922), and sufficiently showed that the ... conversion was at some time prior to the commencement of the ... ...
  • Alabama Consol. Coal & Iron Co. v. Heald
    • United States
    • Alabama Supreme Court
    • 15 d6 Junho d6 1907
    ...statement of the cause of action declared on in the original complaint. Adams v. Phillips, supra. In the case of Williams v. McKissack, 125 Ala. 547, 27 So. 922, cited by the majority, the averment consisted in the of the date as to the time of the alleged wrong, no new claim was introduced......
  • Memphis & C.R. Co. v. Martin
    • United States
    • Alabama Supreme Court
    • 13 d3 Novembro d3 1901
    ...issue upon each of them. This made them material, and defendant was entitled to judgment if any one of them was proved. Williams v. McKissack, 125 Ala. 544, 27 So. 922; Bomar v. Rosser, 123 Ala. 641, 26 So. 510; v. Meyer, 124 Ala. 332, 26 So. 890; Wellman v. Jones, 124 Ala. 580, 27 So. 416;......
  • St. Louis Fixture & Show Case Co. v. F.W. Woolworth
    • United States
    • Missouri Court of Appeals
    • 3 d2 Dezembro d2 1935
    ...l.c. 477. (5) Time of conversion, if alleged, must be proven with certainty. Andrews' Stephen's Pleading, p. 333, sec. 162; Williams v. McKissack, 125 Ala. 544; Mobile Ry. Co. v. Bay Shore Co., 158 Ala. 622; Bowers on Conversion, p. 378, sec. 518. (6) A detention of chattels made bona fide ......
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