Vest v. Culver , 172 Ala. 115 ( 1911 )

McCLELLAN,' j.

At the time this action of detinue was instituted the property in question was in the 'possession of the defendants in execution, in the suit of Barclift v. J. F. and M. L. Vest, under a forthcoming bond executed by them, and taken in accordance with Code 1907, § 4675. The appellee parted with the possession of the property, upon which he had levied the execution, in-strict conformity to the statutory requirements provided. The general rule, that actual possession of or controlling power over the chattel, at the time the suit is instituted, is requisite to maintain detinue, is applicable to this case. — Cable Co. v. Griffitts, 160 Ala. 315, 49 South. 577, 135 Am. St. Rep. 100; 6 May. Dig. p. 266.

The appellee here, before suit brought, and before any demand upon him for the chattels by appellant, committed the possession of the property to the defendants. The plaintiff could not, under these circumstances, recover against appellee. The affirmative charge for appellee was correctly given; and errors, if any, intervening on the trial, were without prejudice to appellant. The several decisions cited in brief for appellant are without application to the facts disclosed by this record. The judgment must be affirmed.

Affirmed.

Simpson, Mayfield, and Sayre, JJ., concur.