Kyle v. Caravello , 103 Ala. 150 ( 1893 )

BRIOKELL, O. J.

1. The Code prescribes the form of a complaint in an action for the conversion of chattels, intended to be a substitute for the declaration in the common law action of trover. When employed, the action in practice is denominated trover, and is governed by the rules applicable at common law to that action. The forms of.pleading appended to the Code, have the force of law; and it is declared that any pleading conforming to these forms, substantially, is sufficient.— Code, § 2265; Crimm v. Crawford, 29 Ala. 623. If it be true, that the complaint is not drawn formally, and is subject to demurrer, the defects are not now available. The defendant appeared, and without demurrer or other objection to the sufficiency of the complaint, pleaded the general issue; thereafter submitting toa judgment mi dicit. The judgment cannot, on error, be assailed because of the defects of the complaint,if it contains a substantial cause of action. — Oode,§ 2835 ; Stewart v. Goode, 29 Ala. 476; Blount v. McNeill, Ib. 473; Mahoney v. O’Leary, 34 Ala. 97. It avers that the plaintiff, to secure the payment of a loan of thirty dollars, pledged to the defendant a gold watch and chain of the value of two hundred dollars, a tender of repayment of the money loaned, a demand of the return of the watch and chain, and the refusal of the defendant to accept the tender, and return the watch and chain. However informally pleaded, these averments show a substantial cause of action. A valid tender to a pledgee extinguishes the lien, and the refusal of the pledgee to return the thing pledged is a conversion, entitling the pledgor to enforce redemption by an action of trover. — Jones on Pledges., § 561; Lawrence v. Maxwell, 53 N.Y. 19 ; Bryson v. Rayner, 25 Md. 424; s. c. 90 Amer. Dec. 69; Loughborough v. McNevin, 74 Cal. 250; s. c. 5 Amer. St. Rep. 435.

2. The judgment nil dicit is informal; it has the form, in some respects, of a judgment in an action for the recovery of chattels in specie. But it must be referred to the complaint, and so referring it, the error of form is cured by the statute of amendments. — 1 Brick. Dig., 776, § 41. The judgment should have been for the recovery of damages simply, and not for the recovery of the watch, or its alternate value. The informality is capable of correction in this court. — Code, § 2836.

3. The judgment rendered by the court below exceeded the sum the plaintiff was entitled to recover. The money loaned, having been tendered only, not paid, and the fact appearing from the face of the complaint, it should have been deducted from the value of the watch and chain, and judgment rendered for the remainder only. The error could be corrected only by a motion for a new trial. — Government St. R. R. Co. v. Hanlon, 53 Ala. 70. Prior to the statute of February 16, 1891, the grant or refusal of a new trial rested in the sound discretion of the primary court, and was not revisable on error. The statute authorizes an appeal from the grant or refusal of a new trial, and declares that “the supreme court shall have power to grant new trials or to correct any errors of the circuit or city court in granting the same.— Pamph. Acts of 1890-91, p. 779. This cause was tried in the court below without- the intervention of a jury, pursuant to the act of February 28, 1889, (Pamph. Acts 1888-89, p. 797), regulating the practice and proceedings in the circuit court of Jefferson county, which declares, that in such cases, on appeal, this court may render such judgment as the court below should have rendered, or may reverse and remand the same, as may seem right. Pursuing the spirit and policy of these statutes, the judgment of the circuit court will be here reversed, and rendered for one hundred and seventy dollars damages, as of the day of the judgment in the circuit court, and the costs of suit in that court; and the appellee will pay the costs of appeal in this court and in the court below.

Reversed and rendered.