Polytinsky v. Lindsey

Alabama Court of Appeals

Polytinsky v. Lindsey

106 So. 70, 21 Ala. App. 128, 1925 Ala. App. LEXIS 269

CourtAlabama Court of Appeals

DecidedOctober 27, 1925

Docket8 Div. 356.

StatusPublished

Cited by2 cases

This text of 106 So. 70 (Polytinsky v. Lindsey) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Polytinsky v. Lindsey, 106 So. 70, 21 Ala. App. 128, 1925 Ala. App. LEXIS 269 (Ala. Ct. App. 1925).

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Opinion

SAMFORD, J.

The judgment entry recites: “Defendant demurs to complaint as amended.” No such demurrer appears in the record, and hence we presume the court did not err in overruling this demurrer. Moreover, according to the recitals in the judgment, the demurrer went to the entire complaint, composed of 12 separate counts. If any of the counts were good, and we think they all are, any demurrer going to the en *129 tire complaint would be properly overruled.

The plaintiff held a mortgage given by one Sharpley on crops raised by him in 1920. Sharpley had crops on two places during the year 1920. As to one of these places (the Weir place), plaintiff’s mortgage was valid and binding; as to the other (the Bolden place), plaintiff’s mortgage was not valid, Sharpley having acquired the crops on the Bolden place subsequent to the execution of the mortgage. There is no evidence identifying the cotton and cotton seed bought' by defendant as being cotton raised on the Weir place. The burden is on plaintiff of showing by the evidence that the cotton purchased by defendant was covered by the mortgage under which he claimed title. The defendant was entitled to the general charge. First National Bank of Alex. City v. Harden, 17 Ala. App. 165, 82 So. 655; Johnson v. Coosa Mfg. Co., 16 Ala. App. 649, 81 So. 141.

For the error pointed out, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

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SAMFORD, J.

The judgment entry recites: “Defendant demurs to complaint as amended.” No such demurrer appears in the record, and hence we presume the court did not err in overruling this demurrer. Moreover, according to the recitals in the judgment, the demurrer went to the entire complaint, composed of 12 separate counts. If any of the counts were good, and we think they all are, any demurrer going to the en *129 tire complaint would be properly overruled.

The plaintiff held a mortgage given by one Sharpley on crops raised by him in 1920. Sharpley had crops on two places during the year 1920. As to one of these places (the Weir place), plaintiff’s mortgage was valid and binding; as to the other (the Bolden place), plaintiff’s mortgage was not valid, Sharpley having acquired the crops on the Bolden place subsequent to the execution of the mortgage. There is no evidence identifying the cotton and cotton seed bought' by defendant as being cotton raised on the Weir place. The burden is on plaintiff of showing by the evidence that the cotton purchased by defendant was covered by the mortgage under which he claimed title. The defendant was entitled to the general charge. First National Bank of Alex. City v. Harden, 17 Ala. App. 165, 82 So. 655; Johnson v. Coosa Mfg. Co., 16 Ala. App. 649, 81 So. 141.

For the error pointed out, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

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106 So. 70, 21 Ala. App. 128, 1925 Ala. App. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polytinsky-v-lindsey-alactapp-1925.

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