Zavelo v. Starr Piano Co.

• Decision Date: 12 January 1922
• Docket Number: 6 Div. 383.
• Citation: 92 So. 253,207 Ala. 114
• Parties: ZAVELO v. STARR PIANO CO.
• Court: Alabama Supreme Court

92 So. 253

207 Ala. 114

ZAVELO v. STARR PIANO CO.

6 Div. 383.

Supreme Court of Alabama

January 12, 1922

Appeal from Circuit Court, Jefferson County; R. V. Evans, Judge.

Action by the Starr Piano Company against M. Zavelo, in detinue for an automobile. There was a directed verdict for the defendant, which on motion of plaintiff was set aside, and new trial avoided, from which latter judgment the defendant appeals. Affirmed.

C. B Powell, of Birmingham, for appellant.

Nesmith & Hunt, of Birmingham, for appellee.

McCLELLAN J.

Detinue by appellee, a foreign corporation, against appellant, to recover an automobile purchased by appellant of appellee under written contract retaining title until purchase price was paid in full. The trial court give the affirmative instruction in favor of defendant; this upon the theory that plaintiff, appellee, had not sufficiently shown its right as a foreign corporation to do business in Alabama. During the trial it appeared that plaintiff's (appellant's) certificate of qualification from the secretary of state was not sufficient; whereupon the court stated at that time that even though plaintiff had not qualified to do business in Alabama, it might still maintain this action to recover property with the title to which it had not parted. The plaintiff's counsel then advised the court that, that being the court's view, the plaintiff would not ask a continuance to enable it to present a sufficient certificate of its qualification to do business in Alabama. Subsequently during the trial, the court changed its conclusion in this particular; whereupon "the court's attention was called to the fact that plaintiff would have taken a continuance but for the statement made by the court that it could recover without showing qualification to do business in Alabama." The court "then stated" that the general affirmative charge for defendant (appellant) would be given, "but, if the plaintiff would make a motion for new trial," and upon the hearing of the motion show qualification to do business in this state, "the judgment would be set aside." The motion for new trial was seasonably filed, and upon its hearing, a sufficient certificate of qualification being produced, the court set aside the judgment, granted the new trial, and restored the cause to the docket of pending cases. As stated, the certificate was sufficient as showing the qualification of the plaintiff to do business...