Stinson v. Faircloth-Byrd Co. , 3 Ala. App. 607 ( 1911 )

WALKER, P. J.

On laying the proper predicate, the testimony of a witness may be impeached by the opposing party by proof of former statements made by the witness which are inconsistent with any part of his testimony which is material to the issue in the case; and it is not a prerequisite to the admissibility of the proof of such contradictory statements that they were made in the presence of the party in whose behalf the witness was examined/ This statement disposes of several of the assignments of error which are sought to be sustained by the argument of the counsel for the appellant.

The following statements in reference to the several written charges which it is urged in argument were improperly refused to the claimant indicate a fault in each of those charges Avhich, in the opinion of the court, justified the lower court in refusing to give it: If the mortgagor had the right to mortgage the property in question at the time he executed the mortgage to the plaintiff, it Avas immaterial whether he retained any interest in it at the time of the levy ofrthe plaintiff’s writ in detinue. Charge 1 ignored this fact.

Charge 6 improperly assumed that all the crops in question were grown on land to which the claimant showed title. The evidence showed that part of the crop was grown on rented land, and the evidence was in conflict on the issue as to whether the claimant or her husband, the mortgagor, owned the crop groAvn on the rented land.

Charge 10 was properly refused as argumentative, and because it singled out a part of the evidence for the consideration of the jury. Charge 12 ignored the evidence tending to show ownership by the mortgagor of property embraced in the mortgage. As to such property, authority from the claimant was not required to give validity to the mortgage in question. The conflict in the evidence was such as to make the case plainly one in which the claimant was not entitled to the general. affirmative charge requested in her behalf.

Upon the trial of the right of property in chattels upon which a writ of detinue has been levied, if the issue is found against the claimant, the appropriate judgment is a condemnation of the property, and that it is subject to the writ of detinue. The judgment rendered in this case in favor of the plaintiff against the claimant for the assessed value of the property sued for, together with the costs of the suit, was erroneous.

This is not an error constituting a ground for the reversal of the judgment. The verdict of the jury was duly responsive to the issue tried. The record furnishing sufficient matter to amend by, the appropriate judgment will be rendered here, and, as so amended, the judgment will be affirmed.—Seisel & Co. v. Folmar & Sons, 103 Ala. 491, 15 South. 850; Keyser v. Maas, 111 Ala. 390, 21 South, 346; Code. § 6042. The statute makes provision for the proceedings against the principal and sureties on the claim bond in the event of the failure of the claimant to deliver the property for which judgment is rendered against her.—Code, §§ 6042, 3792.

Corrected and affirmed.