Opinion
8 Div. 51.
November 15, 1917.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
John A. Lusk Son, of Guntersville, for appellant. W. C. Rayburn, of Guntersville, for appellee.
This suit, which was in detinue, for the recovery of one bale of cotton, was brought by appellee against appellant in the justice court, and from judgment there rendered for the defendant the plaintiff appealed to the circuit court. The trial in the circuit court resulted in judgment for the defendant, and on appeal to the Court of Appeals the judgment of the circuit court was reversed, and the cause was remanded. Davidson v. Farrow Mercantile Co., 13 Ala. App. 614, 68 So. 602. On a second trial judgment was rendered for the plaintiff.
By the present appeal two questions are presented for decision: The refusal of the court to exclude plaintiff's testimony when plaintiff had closed his evidence, and the ruling on introduction of certain of plaintiff's evidence.
That the court properly refused defendant's motion to exclude the evidence after plaintiff had rested is supported by the recent case of Stewart Bros. v. Ransom, 76 So. 70, ante, p. 304.
There was no error in overruling defendant's objection to the statement of David Lusk detailed by plaintiff, as a witness, without objection. The transcript shows that "David Lusk said Farrow bought the cotton, and that he gave a check for it." The defendant objected to any statement by Lusk as to any past transaction. The court of his own motion said, "It is too late; you let two or three questions go by without objection to the question." The answer to plaintiff's inquiry, "What did Lusk say about it?" was, in effect, what he had just stated without objection — that Farrow bought the cotton, and that he (witness) gave a check for it, or that "he gave him a check"; that is, gave a check therefor to the reputed vendor of the bale of cotton.
It may be that, if the objection had been interposed in the first instance, it should have been sustained. La Fayette Railway Co. v. Tucker, 124 Ala. 514, 27 So. 447; Owen v. A. G. S. R. R. Co., 181 Ala. 552, 563, 61 So. 924; Vinson v. Southern Bell T. T. Co., 188 Ala. 292, 305, 66 So. 100, L.R.A. 1915C, 450.
While the objection and exception to question and answer: "Q. Where did the boy go? A. I cannot tell you; he took the railroad and left on the train" — were immaterial to the issues in detinue, yet we are not willing to reverse the case for the introduction of the same. The effect of the testimony was nothing more than that witness did not know where the boy went after he left on the train.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.