Opinion
4 Div. 794.
October 6, 1931.
Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.
Action in detinue by the Black Mercantile Company against W. J. Ayers. Judgment for defendant, and plaintiff appeals.
Affirmed.
E. C. Boswell, of Geneva, for appellant.
The judgment of the justice court was defective in failing to ascertain the value of the articles sued for, and would not support an appeal. Code 1923, § 8718; Jones v. Anderson, 82 Ala. 302, 2 So. 911; Barnhill v. Howard, 104 Ala. 412, 16 So. 1; Martin v. Martin, 173 Ala. 106, 55 So. 632; Milazzo v. Com. Fin. Co., 202 Ala. 328, 80 So. 410.
A. A. Smith, of Hartford, for appellee.
It is not necessary to assess the value of the property which the plaintiff recovers when such property is already in possession of the plaintiff when the cause is tried. Dykes v. Clarke, 98 Ala. 657, 13 So. 690; Barnhill v. Howard, 104 Ala. 412, 16 So. 1; Clifton v. Gay, 21 Ala. App. 412, 109 So. 168; Denham v. Yancey, 19 Ala. App. 45, 95 So. 201.
The appeal is on the record, and raises but one point necessary to be considered.
The action was begun in the justice court for the recovery of certain personal property described in the complaint and the preliminary affidavit. The defendant failing to make replevy bond for the property, the plaintiff made the statutory bond required, and took possession of the property. On the trial in the justice court, judgment was rendered for plaintiff for the property sued for and described, but no value was ascertained by the justice. Appeal was taken from this judgment to the circuit court, where motion was made by plaintiff to dismiss the appeal, because the judgment of the justice is void, in that it failed to ascertain the value of the property.
The plaintiff being in possession of the property sued for at the time of trial in the justice court, it was not necessary for that judgment to assess the value of the property under section 7392 of the Code of 1923. The error is without injury to plaintiff. Dykes v. Clarke, 98 Ala. 657, 13 So. 690; Denham v. Yancey, 19 Ala. App. 45, 95 So. 201; Kirkland v. Eford, 205 Ala. 72, 87 So. 364.
Furthermore, the judgment in the justice court at most was erroneous, and the cause, having been brought to the circuit court by appeal, was under the statute in such case made and provided triable de novo. The proceedings and judgment in the circuit court were free from error, and the judgment is affirmed.
There being no bill of exceptions in the record, we cannot pass upon the finding of the trial court on the evidence.
The judgment is affirmed.
Affirmed.