Downs v. Bailey

135 Ala. 329

• Court: Supreme Court of Alabama
• Decided: November 15, 1902
• Status: Published

Opinion

TYSON, J.

Action of detinue. It is true the plea of 'non- detin at put in issue the fact of possession by defendant of the property sued for at the date suit was brought, and imposed upon the plaintiff the burden of establishing that fact.—Berlin Machine Works v. Ala. City Furniture Co., 112 Ala. 848. The evidence showed, without conflict, that the property sued for was in the possession of the defendant three days before the suit was commenced. “Possession is a fact ordinarily continuous in its nature; and when once established by proof, it must be presumed to continue until a different presumption is raised by contrary proof.”—Clements v. Hays, 76 Ala. 280; 22 Am. & Eng. Ency. Law (2d ed.), p. 1242. The general affirmative charge given at the request of the plaintiff was proper.

Under the principle announced in Townsend v. Brooks, 76 Ala. 308, and Haynes v. Crutchfield, 7 Ala. 189, 200, there was no error in overruling those grounds of the motion ,for a new trial based upon the failure of the verdict of the jury to assess the value of each article of clothing sued for. The articles valued in lump' belong to the same class and no difference is shown by the evidence in the quality, color, etc.

Assuming, without deciding, the meritoriousness of the objection to the verdict and judgment on account of its being in. excess of the jurisdiction of the justice of the peace before whom the case was originally brought, it is clear to us . that the. remittitur by the plaintiff cured the defect.—Pruett v. Stuart, 5 Ala. 112.

Affirmed.