Opinion
8 Div. 860.
March 25, 1926.
Appeal from Morgan County Court; W. T. Lowe, Judge.
Almon Almon, of Albany, for appellant.
Brief of counsel did not reach the Reporter.
Sample Kilpatrick, of Hartselle, for appellee.
Charges 1 and 2 were defective and were properly refused. Hodges v. Kyle, 63 So. 761, 9 Ala. App. 449; Goldstein v. Leake, 36 So. 458, 138 Ala. 573; Key v. Goodall Brown Co., 60 So. 986, 7 Ala. App. 227. The motion for new trial was properly overruled. Richmond D. R. Co. v. Hutto, 14 So. 875, 102 Ala. 575; Peerson v. Johnson, 96 So. 136, 209 Ala. 259.
The suit in the inferior court of Hartselle, Ala., was for the sum of $100. One count of the complaint was for the wrongful taking of the cotton, another for the conversion, and another for the destruction of plaintiff's lien on the cotton. Recovery on counts 1 and 2 must be supported by the legal title to the cotton at the time of its conversion. The undisputed evidence shows that the legal title to the cotton was in P. G. Kimbrough Co. at the time of the taking. Plaintiff was not entitled to recover on either counts 1 or 2 of the complaint. When properly invoked thereto, the court will give the affirmative charge as to said counts. However, the charges requested and refused (1 and 2) required the jury to "find for the defendant in count 1" and "must find for the defendant on count 2 of the complaint." These charges were defective as pointed out in Goldstein v. Leake, 36 So. 458, 138 Ala. 573; Brotherhood, etc., v. Milner, 69 So. 10, 193 Ala. 68; Boshell v. Cunningham, 76 So. 937, 200 Ala. 579; Polytinsky v. Johnston, 99 So. 839, 211 Ala. 99.
The court committed no error in allowing introduction in evidence of the mortgage of Buck Romaines, the tenant, and Paris Draper, his landlord, to P. G. Kimbrough Co., to secure advances to the tenant. Though the evidence showed that at the time of the taking of the cotton, and at the time of the bringing of the suit, this mortgage had not been transferred from Kimbrough Co. to plaintiff, Paris Draper, it was nevertheless competent evidence tending to show that the landlord became bound for advances by Kimbrough to Romaines at the time and for the amount indicated — this in connection with the other evidence that Draper paid on said advances the sum of $176.
The court did not err in refusing defendant's motion for a new trial. The undisputed facts show that suit was commenced in the inferior court of Hartselle, a court with a limited jurisdiction to the amount of $100, and judgment was against defendant; that it was appealed to the Morgan county court, where the judgment rendered was for $104.22. The item of interest for the two or more years on the $100 was more than the excess over the amount originally sued for; and there was no error in not granting said motion for a new trial. Peerson v. Johnson Johnson, 96 So. 136, 209 Ala. 259; R. D. R. Co. v. Hutto, 14 So. 875, 102 Ala. 575; Pruitt v. Stuart, 5 Ala. 112.
The judgment of the county court is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.