Parker v. White

104 So. 843, 21 Ala. App. 20, 1925 Ala. App. LEXIS 174

• Court: Alabama Court of Appeals
• Decided: April 7, 1925
• Docket: 6 Div. 245.
• Status: Published

Opinions

This is a suit by appellee against appellant in trespass for the taking, and in trover for the conversion, of one Cadillac automobile. The first and second counts of the complaint state the Code form of actions for trover and trespass, respectively. The third count sets up facts which plaintiff alleges constitute a conversion by defendant of the automobile. The fourth count was eliminated on demurrer.

The demurrers as to count 3 of plaintiff's complaint were properly overruled. A substantial cause of action was therein stated, and the demurrers assigned pointed out no defect existing. Frazer v. Sellers, 3 Ala. App. 286, 57 So. 384; Haas v. Taylor, 80 Ala. 459, 2 So. 633.

The bill of exceptions does not purport to contain all the evidence introduced on the trial of the case, and for that reason we cannot review the action of the trial court in refusing to give the general affirmative charge in favor of the defendant (appellant). Wadsworth v. Williams, 101 Ala. 264,13 So. 755; 1 Mich. Dig. p. 506, § 907. No ruling upon appellant's motion for a new trial is shown, and of course nothing is presented for review in this regard.

It developed on the trial of the case that plaintiff had, since the institution of the suit removed to the state of Tennessee, and was living there at the time of the trial, as he had been for several months prior thereto. Motion was made by defendant to require plaintiff to give security for the costs, which motion was overruled by the court. This was error. Code 1907, § 3690; The Empire v. Ala. Coal Min. Co., 29 Ala. 698.

The argument that plaintiff was only shown to be temporarily residing out of the state we do not think sound, as it clearly appears from the record that plaintiff was not, at the time of the trial, a legal resident of the state of Alabama, in the sense contemplated by the statute.

A great many other errors are assigned, a number of which appear to have merit, but appellant's brief has not been prepared in accordance with the rules, and as it appears we must hold that the assignments other than those hereinabove treated have been waived.

For the error pointed out, let the judgment be reversed, and the cause remanded. The Empire v. Ala. Coal Min. Co., supra.

Reversed and remanded.