Rasco v. Jefferson

142 Ala. 705

Opinion

ANDERSON, J.

The defendants requested, in writing, the general affirmative charge, which was refused, and the refusal of which is here assigned as error. The record discloses the filing of four pleas by defendants, the second plea being the statute of limitation of one year, and the plaintiff took issue thereon.

■ The proof shows that the cows were sold not later than December, 1899, and that the suit was not brought until March 35th, 3901, more than a year after that date.

The court has often held that when issue is joined on an immaterial plea and its averments are proved, the defendant is entitled to the general charge. — McGhee & Fisk v. Reynolds, 117 Ala. 413; Taylor v. Smith, 104 Ala. 538; Lewis v. Simon & Co., 101 Ala. 546.

We hold, however, that the plea in this case was not proven. It- is as follows: “That the cause of action is barred by the statute of limitation of one year,” and is substantially in the Code form. As a matter of law, this action cannot be barred in one year, hence this plea must fall, although .the sjiit was not brought until more than a year after the cause of action arose-. Overruling Nashville, Chattanooga & St. Louis Ry. v. Parker, 123 Ala. 683.

Counsel for appellants contends that the complaint in this case is insufficient to support any kind of a judgment. We cannot agree with him in his contention. The complaint avers a breach of the bond by levying on and selling personal property, which: makes out a cause of action when coupled with the claim of |300.00 as damages. If the complaint fails to particularize the property or is otherwise vague and indefinite, the defect should be raised by demurrer, as it is only a complaint that fails to set out a cause of action, that can he reached by the general affirmative charge, not one that is vague and indefinite.

The defendant should have been permitted to ask witness Rasco, “Whose property was that?” Ownership of personal property is a fact to which a witness may testify.- — Steiner Bros. & Co. v. Tranum, 98 Ala. 315; Daffron v. Crump, 69 Ala. 77; Nelson v. Iverson, 24 Ala. 9.

The court erred in not excluding the testimony of the plaintiff, “I told him to look at my twelve babies.” It was not matexfial to the issue before the jury and was highly prejudicial to the defendaxxts, as it ivas calculated to arouse the sympathy of the jury ixx favor of the plaintiff.

The trial court did not err in refusing to exclude remarks of plaintiff’s counsel, or in sustaining the demurrer to the defendant’s plea.

Reversed axxd remanded.

McClellan, O. J., Haralson, Tyson, Dowdell, Simpson and Denson, J.J., concurring.