Sandford v. Wiley

52 So. 339, 166 Ala. 136, 1910 Ala. LEXIS 361

Opinion

SIMPSON, J.

This is an action gf detinue, brought by the appellant, against the appellee, for a cow and calf. The court erred in overruling the motion of the plaintiff for a new trial. The court had admitted on the trial a previous summons in the justice of the peace court, purporting to be by the plaintiff against the defendant, which summons was not signed by the plaintiff or his attorney, and the evidence showed, without conflict, that the plaintiff disavowed said summons as soon as he saw it, refused to sign it, did not prosecute that suit, but immediately brought this suit. The plaintiff and a witness, Heath, testified that plaintiff had bought the cattle from Heath and paid for them the last of January or the first of February, 1904, and plaintiff stated that he had loaned the same to the defendant. The defendant did not introduce any evidence to contradict these witnesses, hut testified that in May, 1904, he had bought the cattle from Heath. Giving-credit to all of the testimony, even if the defendant did purchase the cattle from Heath (or attempt to purchase same) after they had been sold by Heath to the plaintiff, such purchase could not pass any title to the cattle, and plaintiff Avould be entitled to the general affirmative charge.

The judgment of the court is reversed and the cause remanded.

Reversed and. remanded.

Dowdell, C. J., and McClellan and Sayre, JJ., concur.