Opinion
8 Div. 838.
September 12, 1933.
Appeal from Morgan County Court; W. T. Lowe, Judge.
Action in detinue by C. H. Derrick against Homer Hill. From a judgment for plaintiff, defendant appeals.
Affirmed.
J. N. Powell, of Hartselle, for appellant.
In order for plaintiff to recover in a suit in detinue, he must prove that he has the legal title to the property sued for. In this case no such proof was made by the plaintiff. Cooper v. Watson, 73 Ala. 252; Seals v. Edmondson, 73 Ala. 295, 49 Am. Rep. 51; Russell v. Walker. 73 Ala. 315; Graham v. Myers Co., 74 Ala. 432; Jones v. Anderson, 76 Ala. 427; Stewart v. Tucker, 106 Ala. 319, 17 So. 385; Miller v. Eatman, 11 Ala. 609. Plaintiff must prove possession of the property at the time of suit. Lindsey v. Perry, 1 Ala. 203; Walker v. Fenner, 20 Ala. 192; Berlin, etc., v. Ala. C. F. Co., 112 Ala. 488, 20 So. 418. Outstanding title may be shown in a third party or the bailee may defend bailor's suit. Foster v. Chamberlain, 41 Ala. 158; Johnson v. Marshall, 34 Ala. 522; White v. S. T. S. R. Co., 90 Ala. 253, 7 So. 910. The trial court erred in refusing the affirmative charge to defendant and overruling motion for new trial.
T. C. Almon, of Decatur, for appellee.
Brief did not reach the Reporter.
Action of detinue, by appellee against appellant, for the recovery of a double-barrelled hammerless shotgun. Verdict and judgment for plaintiff, and defendant appeals.
The court properly charged the jury that the burden was on the plaintiff to show that at the time he brought the suit he must have had the legal title to the personal property sued for and also an immediate right to the possession thereof.
On the trial, the evidence was in conflict. The plaintiff offered evidence which tended to sustain the burden aforesaid, and the defendant offered some testimony tending to show the contrary. This controlling issue was decided by the jury in favor of the plaintiff, and in our opinion the evidence was ample to support said verdict.
There was no phase of this case which entitled the defendant to the affirmative charge; and, as the refusal of said charge is the principal insistence of error, the judgment from which this appeal was taken will stand affirmed.
The action of the court in overruling the motion for a new trial is not presented in a manner authorizing its consideration. Byrd v. State, 24 Ala. App. 451, 136 So. 431; Elliott v. Davis, 16 Ala. App. 647, 81 So. 139.
Affirmed.