Powell v. Smith , 209 Ala. 254 ( 1923 )

SOMERVILLE, J.

A satisfactory excuse has been shown for the delay in filing the transcript in this case, and the motion to dismiss the appeal will be overruled.

Plaintiff sues in detinue to recover possession of a cow and her yearling calf. .

Plaintiff claims to own these animals by purchase from one Nelson Craig, and defendant claims them under a mortgage executed to him by plaintiff’s husband, Coot Powell. The single issue in the case was whether plaintiff was the purchaser of the mother cow from her former owner, Craig, or whether her husband was the purchaser in his own right.

In the absence of a showing that plaintiff authorized his conduct, or was present, it was error to allow the witness McKinney to state that Coot Powell came to him just before the trial and talked to him about the case; and for the same reason it was error to allow the defendant to state that Coot Powell claimed to be the owner of the animals. His relationship to plaintiff did not of itself render his conduct, or claims, or statements, admissible against her. He had not been examined as a witness, and there was no basis for the use of such evidence for the purpose of contradicting him as a witness.

The fact that he was heavily indebted to defendant, or indebted to him in any amount, apart from the immediate consideration due on the mortgage under which defendant claims, was wholly irrelevant to the issue, and calculated to prejudice plaintiff’s case.. Defendant’s testimony to that effect was improperly admitted over plaintiff’s objection.

Plaintiff’s counsel offered to show, by questions addressed to the defendant on cross-examination, that the witness Hagans had been summoned as a witness against defendant in this case, and that Hagans brought to defendant a letter written on Ku Klux Klan paper, a few days before the case was to be called, threatening Hagans and warning him to stay out of court; that defendant was a member of the Klan; that Hagans told defendant he believed defendant had something to do with sending the letter out; and that when Hagans presented the letter to him defendant tore off the part on which the threat was written and handed back the other part.

All of these questions and all of this matter was objected to by defendant, and the objections were sustained. In this we think the trial court erred. The facts and circumstances offered to be shown furnished a satisfactory basis for the inference that defendant was a party to sending the letter, by way oí an implied admission.

Of course, the mere fact that the witness Hagans received such a letter, independent of any proof of his connection with it, by admission or otherwise, would not be admissible against defendant in this case.

The same facts could, of course, be shown by any other witness, if available.

Defendant was properly allowed to contradict plaintiff’s witness Craig, a proper predicate having been laid, by testifying that Craig told him, at a specified time and place, that he sold the cow to Coot Powell.

• It is unnecessary to pass upon other assignments of error. Let the judgment be reversed and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.