Craven v. Higginbotham , 83 Ala. 429 ( 1887 )

STONE, C. J.

The present suit is brought on the bond o£ Craven as constable, and seeks to hold him and his sureties liable for damages, caused by an alleged false indorsement and return of “ forfeited,” made by the former, on a forthcoming, or delivery bond, on which Higginbotham was surety for one Mrs. Poore. It was contended in the trial court, and the contention is renewed here, that parol testimony can not be received to contradict the return of the constable. That principle has no application to a case like this, where the wrong complained of is, that the officer made a false return. It is generally the only mode by which the falsity of the return can be proved.—Anderson v. Rhea, 7 Ala. 104.

The suit is for the alleged false return of “forfeited,” setting out the facts. There was no demurrer to the complaint, but issue was taken upon it. All the testimony objected to tended to prove the truthfulness of the averments made in the complaint; and the charges, properly construed, simply instructed the jury that, if the material averments of the complaint were proved, the plaintiff was entitled to a verdict. If parties try their case on an informal, or even an immaterial issue, and repleader is neither asked for nor granted, this is conclusive of the right litigated.—Masterson v. Gibson, 56 Ala. 56; Mudge v. Treat, 57 Ala. 1; Ex parte Pearce, 80 Ala. 195. We do not, however, admit that the suit was improperly brought. The fact that the relief might have been obtained on supersedeas, does not limit the right of redress to that single remedy.—Baylor v. Scott, 2 Por. 315; Tarleton v. Gibson, 3 Stew. 240; Andress v. Crawford, 11 Ala. 853; Governor v. White, 4 St. & Port. 441.

The question of the delivery of the wagon and the oxen was fairly submitted to the jury in the charges, and we find no error in the record.

Affirmed,