Opinion
4 Div. 433.
January 15, 1929.
Appeal from Circuit Court, Russell County; J. S. Williams, Judge.
Action in detinue by the Peace Motor Company against O. E. Blakeley. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
J. W. Kelley, of Phenix City, for appellant.
The judgment must be for the property sued for or its alternative value. Graham v. Fincher, 21 Ala. App. 276, 107 So. 327; Code 1923, § 7392; Johnson v. McFry, 13 Ala. App. 619, 68 So. 718.
H. A. Ferrell, of Seale, for appellee.
Brief did not reach the Reporter.
This being a suit by appellee (vendor) against appellant (vendee) in detinue for an automobile, based upon the alleged default in the payments on what is commonly known as a conditional sale contract, as provided for in section 7400 of the Code of 1923, and the appellant (defendant) suggesting that the jury (in this case the trial judge, sitting without, or as, a jury) be required to "ascertain the amount of the * * * unpaid balance of the purchase price of the article sold," a failure to make such ascertainment or finding is fatal to the judgment rendered.
The record shows the suggestion mentioned, made by appellant, and the failure of the judgment to respond. For this error, the judgment must be reversed, and the cause remanded.
No other questions will be here considered.
Reversed and remanded.