Guy v. Lee , 81 Ala. 163 ( 1886 )

SOMERVILLE, J.

— 1. It is objected that the affidavit and writ of attachment sued out by the plaintiff, against the defendant in the attachment suit, Poster, was not admissible in evidence against the claimant of the property levied od, because it is void. If this be true — that is, if the process be void, and not merely irregular or defective —the objection is well taken, otherwise not. —Talliaferro v. Lane, 23 Ala. 369 ; Ellis v. Martin, 60 Ala. 394.

The argument is, that the action being one to recover damages which are “ not certain or liquidated,” within the meaning of section 3252 of the Code (1876), sub-div. 3, in order to authorize a writ of attachment to issue, there must have been an additional affidavit of “ the special facts and circumstances ” required by section 3257 of the Codé, so as to have enabled the judge to determine the amount for which a levy should be made. There is nothing in this suggestion. The action is for a breach of warranty in the sale of personal property, and this is not for damages which are uncertain or unliquidated, but it is “ a moneyed demand, the amount of which can be certainly ascertained,” within the meaning of sub-div. 2, of said section 3252 of the Code. No such special affidavit was therefore required. — Bozeman v. Rose, 40 Ala. 212 ; Weaver v. Puryear, 11 Ala. 941; Yonge v. Holly, 27 Ala. 203; Gibson v. Marquis, 29 Ala. 668.

The attachment proceedings, including the affidavit and writ of attachment, were property admitted in evidence against the claimant. — Meyer v. Clark, 40 Ala. 259 ; Lanier v. Bank of Montgomery, 18 Ala. 625.

2. The court did not err, either, in allowing'the plaintiff to introduce in evidence the claim bond given by the claimant for the property levied on under the writ of attachment. Meyer v. Clark, supra; Henderson v. Bank of Montgomery, 11 Ala. 856; Sandlin v. Anderson, 76 Ala. 403..

3. We find no evidence in the record which tends to prove that, when J. P. Guy, the husband of the claimant, received the mule in controversy from Warren & Armstrong, he was then acting as the agent of the claimant, or that they acted as the agent of Foster in delivering the property over to him. The transaction involved no sale, trade, gift, or transfer of property, but only a transfer of naked possession unaccompanied by claim of right — originating, in fact, from what appears to have been an abandonment of the mule'by the owner, Foster, while escaping from the county, and a casual finding of the animal by Warren & Armstrong as in the case of an estray. Upon this state of the evidence, we, therefore, hold: (1) That, inasmuch as the facts, testified to by the witness Guy, failed to show that he had any personal knowledge whatever of the alleged agéncy of Warren & Armstrong, but rather the contrary, the court property excluded the question put to him, as to whether they were acting as the agents of Foster. Agency, in such a case, would not be a fact, but a mere opinion, or deduction of the witness, unsupported by facts. (2) That it was equally incompetent for the witness to state that he acted as agent for his wife in receiving possession of the mule, nothing being said about the matter at the time, and nothing transpiring from which a transfer for her benefit could be inferred, as, for example, that he paid for the mule a consideration which constituted the corpus of the wife’s statutory separate estate, as opposed to the mere income, or other circumstance of like significance. — Daffron v. Crump, 69 Ala. 77.

4. The declarations made by the husband, J. P. Guy, claiming ownership of the mule, while it was in his possession, and before any transfer or pretended transfer of it to his wife, were admissible in evidence against the claimant, and the court did not err in so ruling. Such declarations, we have often decided, “ are admissible, in an issue of disputed ownership, no matter who may be the parties to the litigation.” — Humes v. O’Brien, 74 Ala. 64, 80.

5. But such declarations as to how title was acquired, either as to source or manner, are not admissible. The court erred, under this rule, in allowing the witness Inman to be asked in reference to J. P. Guy’s declarations detailing circumstances under which he had acquired possession of the mule in controversy. — Daffron v. Crump, 69 Ala. 77.

6. If the evidence showed without conflict, that the property in controversy was the wife’s statutory separate estate, and did not tend to show that it was the property of Eoster, merely in the possession of J. P. Guy, without any right of property in it, the rule would then apply, without doubt, that the husband’s declarations made against interest, would be inadmissible to affect the wife’s right in this suit, whatever they may be.- — Brunson v. Brooks, 68 Ala. 248. But the record does not show this to be the case.

Eor the error above pointed out the judgment is reversed and the cause remanded.