Elmore v. Simon & Bro.

67 Ala. 526

• Court: Supreme Court of Alabama
• Decided: December 15, 1880
• Status: Published

Opinion

SOMERVILLE, J.

— This case, having been first tried by a justice of the peace, was taken by appeal to the Circuit Court, and was there tried, by written consent of the parties, without the intervention of a jury. — Code, 1876, §§ 3029-30. The papers sent up from the justice’s court disclosed an action of trover for one bale of cotton, the complaint being in substantial compliance with the form prescribed by the Code. The plaintiff filed with the clerk of the Circuit Court what purported to be an amended complaint, which was a count in case, based on the same cause of action. This was done without leave of court, and on motion of the defendant was stricken from the files by the court.

We think this was error. The statute is studied in its avoidance of all technicalities in such trials. It provides that such cases shall be “tried according to equity and justice without regard to any defect in the summons or other process before the justice.” — Code, 1876, § 3121. It was both the right and duty of the plaintiff to file a statement of his cause of action before proceeding to trial. No leave of court was requisite for this purpose. A judgment by default rendered without it would constitute error for which judgment would be reversed in the appellate court. — Arundale v. Moore, 42 Ala. 482. Though called an “ amended complaint,” it was clearly designed to be taken as a statement of his cause of action, in connection with the count in trover disclosed by the original papers. The court ought to so have considered it, and as trover and case may be properly joined, it was error to strike this statement from the file of papers in the cause. Schuessler & Co. v. Wilson, 56 Ala. 516; 1 Chitty Plead. 200; Dixon v. Barclay, 22 Ala. 370.

In order to maintain the action of trover the plaintiff must have a property in the goods, alleged to be converted, absolute or qualified, with the immediate right of possession at the time of suit being instituted. This right is not possessed by a mortgagee until after default, or the law day, where a stipulation in the mortgage authorizes him to seize or take possession only after such date or event. — Ellington v. Charleston, 51 Ala. 166; Herman on Chat. Mort. § 71; Hathaway v. Brayman, (42 N. Y. 322), 11 Amer. Rep. 524; Ring v. Neale, (114 Mass. 111), 19 Amer. Rep. 316. The terms of the mortgage in this case expressly postponed the right of the mortgagee to take possession of the mortgaged property until the 15th day of September, 1879, which was after the conversion of the cotton by the defendants.

The mortgage in this case is dated January. 22, 1879, and the cotton in controversy was not at that time either planted or growing. It was, therefore, the conveyance of a crop not in esse, but to be produced only -in futuro. The decisions of this court uniformly hold that sueb a mortgage does not convey a legal but only an equitable title to-the cotton, and that it will not support an action of trover, detinue or trespass. Grant v. Steiner, 65 Ala. 499; Rees v. Coots, 65 Ala. 256, where the authorities are fully cited.

The judgment of the Circuit Court is reversed, and tbe cause remanded.