Hamner v. Holman

116 Ala. 368

• Court: Supreme Court of Alabama
• Decided: November 15, 1896
• Status: Published

Opinion

McCLELLAN, J.

The justice of the peace in formulating the affidavit and bond and issuing the writ in this case, which was intended to be an action of detinue, became entangled with printed forms of the affidavit, bond"and writ in attachment. The result is ludicrous ; but sufficient appears in the several papers to show that the plaintiff’s real cause of action was in detinue for the recovery of two bales of cotton which he claimed title to under a mortgage. The cotton was seized by the officer and the defendant was orally notified by him of the day of trial. The defendant appeared on the day set for the trial with his attorney, and came also the plaintiff with Ms attorney, “and there being .no complaint of any Mnd on file, plaintiff’s attorney by, and with the agreement and consent of defendant’s attorney, prepared and filed” the following complaint, (the property being still in the hands of the officer under the seizure in detinue) : “T. L. Holman, plaintiff, v. J. M. Hamner, defendant. Justice Court of W. W. Elrod. The plaintiff claims of the defendant the following personal property, viz., Two bales of cotton containing 1,000 lbs. of lint cotton, more or less, which cotton is now in the possession of M. M. Elrod, the bailiff who seized it under the writ of detinue in this case, with the value of the use or hire thereof during detention, viz., from the 22d day of Dec., 1895.” Issue was joined on this complaint, the trial was had before the justice, and judgment in detinue was by him rendered for the plaintiff. It is, we think, too clear for' argument that all prior defects in the proceedings before the justice — the want of a summons to the defendant, the irregularities, &c. in the form of the bond, affidavit and writ, &c. — were cured by the filing of this complaint by agreement and consent of the parties, its acceptance by the defendant as a good complaint for the recovery of the cotton from the defendant and the taking of issue — by which it is to be understood that defendant pleaded in effect that the property did not belong to plaintiff — on the complaint and the trial of such issue; and from the filing of the complaint, under the circumstances shown, it is to be considered that the whole proceeding was a regular and orderly prosecution of an action in detinue.

On appeal to the circuit court, the defendant demanded that plaintiff should file a new complaint on the theory that the complaint filed before the justice was not a sufficient complaint or no complaint at all. The argument in support of this idea is that the complaint filed in the justice’s court claimed property not in the possession of the defendant, but in the. possession of the bailiff. This is a mistaken view. The property was claimed by the complaint as being in the possession of the defendant at the time of suit brought, and the reference to the bailiff’s possession at time of complaint filed was manifestly made as mere identification of the property sought to be recovered. This reference to the bailiff’s possession may well be treated as surplusage, and with, it eliminated, the complaint is in strict conformity to the form prescribed in the action of detinue. Code of 1886, p. 795.

The circuit court properly declined to require plaintiff to file a complaint in the circuit court, and committed no error on the agreed facts in rendering judgment — the trial being without jury — for the plaintiff.

Affirmed.