Opinion
6 Div. 591.
April 17, 1934.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Action in detinue by the Starr Piano Company Sales Corporation against Lois E. Woodson. Judgment for defendant, and plaintiff appeals.
Affirmed.
Wm J. Slaughter, of Birmingham, for appellant.
The verdict of the jury is defective because it fails to find the alternate value of the property, and the judgment is likewise ineffectual. Failure to fix the alternate value cannot be said to be error without injury unless the property is in the possession of the successful party. Here it was in plaintiff's possession by virtue of its replevy bond. Code 1923, § 7392; Killian v. Taylor, 20. Ala. App. 614, 104 So. 446; Crews v. Parish, 21 Ala. App. 80, 105 So. 430; Scott v. Howard, 215 Ala. 590, 112 So. 194; Scott v. Parker, 216 Ala. 321, 113 So. 495; Averett v. Milner, 75 Ala. 505; Gwin v. Emerald Co., 201 Ala. 384, 78 So. 758; Jones v. Anderson, 76 Ala. 427; So. Warehouse Co. v. Johnson, 85 Ala. 178, 4 So. 643; Ex parte Vaughan, 168 Ala. 187, 53 So. 270; Carroll v. Blackburn, 12 Ala. App. 648, 68 So. 515; Jernigan v. Willoughby, 159 Ala. 650, 48 So. 812; Johnson v. McLeod, 80 Ala. 433, 2 So. 145.
Chas W. Greer and Waldrop Windham, both of Birmingham, for appellee.
Failure to assess the value of the property was of no injury to appellant, and it cannot complain. Supreme Court Rule 45; Kirkland v. Eford, 205 Ala. 72, 87 So. 364; Shepherd v. Clements, 25 Ala. App. 7, 141 So. 250; Coan v. State, 25 Ala. App. 62, 141 So. 262; Johnson v. Herron, 25 Ala. App. 83, 141 So. 360.
This was a suit in detinue by appellant to recover a piano from appellee. Verdict and judgment went for appellee.
Appellant had given bond and was in possession of the piano in suit.
Upon the trial, before a jury, the verdict was, simply: "We the jury find for the defendant," with judgment accordingly.
The value of the piano and damages should have been assessed (Code 1923, § 7392); but appellant cannot be heard to complain of the omission. It was not harmed. Kirkland v. Eford, 205 Ala. 72, 87 So. 364; and especially, International Harvester Co. of America v. Pittman et al., 226 Ala. 355, 147 So. 144. Code 1923, § 7318.
No other question is presented for our consideration.
The judgment is affirmed.
Affirmed.