Giddens & Co. v. Rutledge , 146 Ala. 232 ( 1906 )

DENSON, J.

The plaintiff’s witness, Dan Stewart, having testified on his examination in chief that the cows “never at any time belonged to the defendant,” it was competent for the defendant, after laying the predicate, as she did, to proye by Webster that Dan Stewart told him in December, 1901, that he conld not sell the red cow, Hattie, because she belonged to his sister-in-law, Florence Rutledge (the defendant). This was not substantive evidence of the title or lack of title, but was proper evidence to be considered by the jury, in connection with the other evidence, in determining the credibility of Stewart’s testimony. It was a discrediting circumstance. The. court put this limitation upon it, and there was no error in admitting it, limited as it was.

The only other assignment of error insisted upon relates to the refusal of the court to require the defendant (appellee) to make an additional certiorari bond. The motion to require the additional bond was rested solely upon the ground "that the penalty of the bond was only $100 and the costs at the time the motion was made had reached the sum of $215. The plaintiffs obtained judgment for the possession of the cows sued for, and, having executed a replevy bond on the failure of the defendant to replevy, plaintiffs had possession at the time the judgment was rendered by the justice, so no' money judgment was rendered against the defendant, except as to the costs of the suit, and this amounted to only $32.38. The penalty of the bond was $100 and was fixed by the judge of probate who granted the certiorari. The bond was executed in substantial conformity to §§ 482 and 483 of the code of 1896, and reversible error cannot be predicated on the court’s ruling on the motion. The motion in the (‘ase of Orr v. Sparkman, 120 Ala. 9, 23 South. 829, was rested upon the ground that the bond was not conditioned as the statute prescribes, so it is not authority Avhieh should control under the facts shown in the ease at bar.

No eiror appearing in the record, the judgment appealed from Avill be affirmed.

Affirmed.

Haralson, Dowdell, and Anderson,. JJ., concur.