Wood v. Harper

56 So. 10, 1 Ala. App. 422, 1911 Ala. App. LEXIS 270

• Court: Alabama Court of Appeals
• Decided: May 31, 1911
• Status: Published

Opinion

PER CURIAM.

The complaint contained what purported to be counts in trover, trespass, and case; and while perhaps some of them are defective in averments and subject to demurrer, yet no demurrer was interposed.

The defendant filed what he styled a plea in abatement to the entire complaint, and to which a general demurrer was sustained by the court. If there was error in sustaining a general demurrer it was manifestly error without injury, as it affirmatively appears that the defendant on the trial had the benefit of everything set up as a defense in the said plea.

The certificate offered in evidence by the defendant, and to which an objection by the plaintiff was sustained, is not set out in the bill of exceptions, and we are therefore unable to say whether the trial court erred in its ruling on plaintiff’s objection or not.

The bill of exceptions, which purports to set out all of the evidence, fails to show that the recorded judgment of the justice of the peace mentioned in the evidence was recorded within 90 days of its rendition under the special act approved March 1, 1901 (Acts 1900-01, p. 1355), relating to Randolph county, and unless it was so recorded it created no lien.

The evidence, without conflict, showed that the plaintiff was the owner of the horse in question at the time of the levy of the defendant’s execution on his judgment in the justice court against one Burke, and hence a wrongful taking. This justified the giving of the general charge in favor of the plaintiff on the count in trespass.

No error appearing of record the judgment is affirmed.

Affirmed.

Note. — The foregoing opinion was prepared by Mr. Chief Justice Dowdell, of the Supreme Court, before the transfer of the case to this court, and was adopted by this court.