Cook v. Patterson

35 Ala. 102

• Court: Supreme Court of Alabama
• Decided: June 15, 1859
• Status: Published

Opinion

STONE, J.

This was a suit by Patterson as an individual. The result of this suit, one way or the other, could not determine or affect the right of Mrs. Patterson’s estate in the property. Nor could the verdict and judgment in this suit be evidence for-Patterson, the witness, in another suit, in the sense in which that language is employed in section 2802 of the Code. — See Harris v. Plant, 31 Ala. 639; Rupert v. Elston, at the present term.

[2.] The point made on the charges given and refused, relates to the sufficiency of plaintiff’s title to maintain trover. Prior actual possession, although there may be a better title in another, is sufficient to maintain trover, against one.who afterwards comes into the possession without title, or who received the possession from one who thus came into possession without title, unless such defendant can connect his possession with the better title. Brown v. Beason, 24 Ala. 466; Lowremore v. Berry, 19 Ala. 130; Hare v. Fuller, 7 Ala. 717; Reav. Dig, 445, § 3; Miller v. Jones, 26 Ala. 247; Reese v. Harris, 27 Ala. 301; Donnell v. Thompson, 13 Ala, 440.

No question seems to have been made in the court l below, on the sufficiency of the evidence to prove a con- » version.

[3.] The record contains what purports to have been •an application to a circuit judge for an order granting a re-hearing in this cause, under the Code, § § 2408, et seq. The order was refused; and although there is an assignment of error, which seeks to have this question revised, no argument has been made upon it. In this state of the case, we do not feel called upon to decide, whether the application was made in time, whether it sets forth sufficiently the matter complained of so as to justify the relief prayed, or whether an appeal to this court will lie from the refusal of the circuit j udge to make such order in a proper case.

Judgment of the circuit court affirmed.