Opinion
7 Div. 381.
April 26, 1923.
Appeal from Circuit Court, DeKalb County; W. W. Haralson, Judge.
Isbell Scott, of Ft. Payne, for appellant.
The defendant having disclaimed possession, the plaintiff was entitled to the affirmative charge. Acts 1911, p. 33; Clark v. Boutwell, 16 Ala. App. 626, 80 So. 630.
Baker Baker, of Ft. Payne, for appellee.
When property belonging to a third person is on the premises of one who asserts no claim to or interest therein, he is not liable in detinue to the owner. 18 C. J. 1000; Behr v. Gerson, 95 Ala. 438, 11 So. 115.
Under the provisions of the act approved February 28, 1911 (Gen. Acts 1911, p. 33), when the defendant in a detinue suit disclaims possession of the property sued for, the plaintiff is entitled to have judgment against the defendant for the property, and if the evidence reasonably satisfies the court or jury that the defendant had possession of the property at the commencement of the suit, the plaintiff may recover the costs of suit and damages for the detention.
The only answer made by the defendant in the instant case is by way of disclaimer. Hence, as matter of law, the plaintiff was entitled to a verdict and judgment against the defendant, without costs or damages. The instructions requested by defendant, and refused by the trial judge, ignored this right, and were therefore properly refused, in any view of the evidence as to defendant's possession of the property. Had these instructions been so limited as to deny plaintiff's right to the recovery of costs and damages, they would have been appropriate to the issue presented, and we might reach a different conclusion as to their refusal.
The only reason given by the trial court for setting aside the verdict was that charges requested by the defendant had been improperly refused. As we have seen, this ground for granting the motion for a new trial cannot be sustained. The evidence as to defendant's possession of the piano player and stool was sufficiently in dispute to make it a jury question, and we cannot sustain the judgment granting the motion, on the ground that the verdict was contrary to the evidence.
The verdict found "the issue" in favor of the plaintiff; the issue being defendant's possession of the property vel non. While we think the verdict was erroneous in finding that defendant had possession of the rocking chairs, this was without prejudice, since a similar finding as to defendant's possession of the other property carried the cost of the suit in any event.
The conditional judgment on defendant's replevy bond was irregular and not authorized by the statute (Code 1907, § 3783; Rand v. Gibson, 109 Ala. 266, 19 So. 533); but no point is made as to that. As the record is presented, we are constrained to hold that the trial court erred in granting the motion for a new trial, and the judgment in that behalf will be reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.