Reese v. Par Value Loan Co.
This text of 214 So. 2d 905 (Reese v. Par Value Loan Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Defendant appeals from a judgment for plaintiff in an action at law for conversion of an automobile.
The complaint contains three counts. Count II is in detinue for the automobile. Counts I and III are for conversion of the automobile. In Count III, plaintiff alleges that it claims title to the car by virtue of a conditional sales agreement.
Defendant filed a plea of the general issue and a special plea wherein defendant alleged that plaintiff was not entitled to possession of the car, nor to damages for its conversion, because of a judgment rendered against “Billie” J. Bearden on August IS, 1962, which was recorded in office of Judge of Probate on August 16, 1962, and that defendant had execution levied on the car and the car was sold by the sheriff to defendant at execution sale. The evidence shows that the sheriff levied on the car on October 22, 1962, and the sale was made on November 14, 1962.
Plaintiff replied that it claims title through a contract entered into between plaintiff and “Billie”'J. Beardén on September 18, 1961, a certificate of which was recorded in office of judge of Probate prior to the obtaining of any judgment or other lien -against .the. automobile, or the accrual of any rights by defendant against the car. The certificate of the Judge of Probate shows that a chattel mortgage recording form was filed- - for record on September 20, 1961.
Trial was' by the court without a jury. Motion for. new trial was overruled .and defendant appealed.
We pretermit consideration of certain motions filed by the parties in this court.
In his brief, defendant argues three assignments of error, to wit:
“1. The Court erred in overruling the objection of the Appellant (defendant) to the following question propounded to the witness Henry Green on direct examination by Counsel for the Appellee (plaintiff) :
“ ‘Q: Let me ask you this Mr. Green, did you call me on or about October 27, concerning a 1961 Falcon which Mr. Phelps had picked up and the Sheriff had levied on?’ (T.P. 23).
“2. The Court erred in overruling the objection of Appellant (defendant) to the following question (sic) propounded to the witness Henry Green on direct examination by Attorney for Appellee (plaintiff) :
“ ‘Q : Did I talk with you ’ and tell you that Mr. Reese had agreed to pay this mortgage off at the rate of $100.00 a month?
“A: Yes, sir.
“Q : Did you advise me that this would be acceptable to you ?
“A: Yes, sir.’ (T.P. 24).
“3. The Court erred in making the following ruling during the trial of this cause as to the admissability (sic) of testimony:
[164]*164■ “THE'COURT:'
“ ‘The Court will consider only rele- ' vant testimony. I will consider only relevant evidence and there is no need to make a ruling on your objection. Go ahead.’ (T.P. 24).
“MR. REESE:
■ '“‘I except.’”1
As to Assignment 1, defendant asserts jthat the ruling of the court was error because the evidence called for was self-serving and was hearsay.
We are not certain that the ques.tign, “Did you call me on or about October 27 -,” calls for hearsay. It may be self-serving. Whatever was said in the conversation would be hearsay as to defendant, but the subsequent questions, as 'to how the witness happened to call the plaintiff’s attorney and the levy on the car, were' not objected to. If, however, the one question objected to and the ruling on the objection, should be considered as going 'also to the subsequent questions concerning' what was said over the telephone about the levy on the car, we are not persuaded that reversible error, is shown. As we' understand the record, it is not disputed that the car was levied on by the Sheriff of Montgomery County on October 22, 1962. Deputy Sheriff Phelps so testified without objection by defendant. Defendant alleged in his second plea that the sheriff levied on and sold the car. The testimony by plaintiff’s manager, Greene, that the car had been levied on, was only the statement of an admitted fact in the case and no possible injury could result from its admission. Pittman v. Pittman, 124 Ala. 306, 310, 27 So. 242.
In the second assignment, defendant complains that the court erred in overruling his objection to two questions. As is shown by the record, defendant did not object until after both questions had been answered. This court has said: “. . . timely objection to a question is necessary and the point is not preserved if the objector speculates on the answer and waits until after the answer to reserve an exception to the ruling.” Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 612, 64 So.2d 594, 597.
The third assignment is that the court erred in ruling that it would “consider only relevant evidence and there is no need [165]*165to make a ruling on your objection.” The trial court erred in this ruling.
“This being a suit at law, the rules developed in equity cases pursuant to the provisions of Sec. 372(1), Tit. 7, Code of Alabama 1940, to the effect that in the absence of objections the court could consider only such evidence as is relevant, material, competent, and legal, do not apply.” Liberty National Life Ins. Co. v. Reid, 276 Ala. 25, 36, 158 So.2d 667, 677.
When, in the course of a trial at law, the court ought to rule on an objection to a question, but refuses to rule, we do not know of anything the party objecting can do except to state his objection. The party cannot compel the court to rule. In the circumstances of the instant case, the party objecting is completely without remedy against inadmissible evidence unless the appellate court will treat the action of the trial court as overruling the objection. Hereinabove, in considering Assignment 2, we have treated the refusal to rule as overruling the objection.
As already stated, however, the objection came too late and the point was not preserved,
The other assignments are not argued and, therefore, must be considered -as waived. Supreme Court Rule 9; Morgan County v. Hill, 257 Ala. 658, 60 So.2d 838, ¶ [1],
Reversible error has not -been- shown and the judgment must be affirmed.
Affirmed.
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Cite This Page — Counsel Stack
214 So. 2d 905, 283 Ala. 162, 1968 Ala. LEXIS 1002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reese-v-par-value-loan-co-ala-1968.