Clark v. Boutwell

[627] BROWN, P. J. [1] The certificate of the ; clerk authenticating the record evidences the fact that the transcript filed here is a transcript 'of the record and proceedings of the circuit court of Coffee county in the case of D. D. Clark, as administrator of the estate of D. W. Clark, deceased, against J. M. Bout-well and J. N. Boutwell, and the evidence set out in tire bill of exceptions shows that I>. W. Clark, the original plaintiff, is dead. While the omission of the clerk to set out the order reviving the suit in the name of the administrator is an irregularity, it is not one affecting the jurisdiction of this court on appeal, and appellee by joinder in error and submission without objection to the record will be held to have waived this irregularity. Mobile Mutual Ins. Co. v. Cleveland, 76 Ala. 321. [2] Ordinarily, one of the elements of the burden of proof resting on the plaintiff in an action of detinue is to show that the defendant at the time of suit brought was in possession of the property, or that he had actual possession previous to suit brought, and parted with the property wrongfully in order to elude the action. McCurry v. Hooper, 12 Ala. 823, 46 Am. Dec. 280; Cable Co. v. Griffiths, 160 Ala. 315, 49 South. 577, 135 Am. St. Rep. 100. [3] In this case, however, the defendants, by pleading the general issue, admitted their possession of the property at the time of suit brought, and relieved the plaintiff of this element of the burden of proof. Acts 1911, p. 33; Padgett v. Gulfport Fertilizer Co., 11 Ala. App. 366, 66 South. 866; Chappell v. Falkner, 11 Ala. App. 382, 66 South. 890. [4, 5] For the plaintiff to recover, therefore, under this state of the pleadings, it was only necessary for him to show that he had a general or special property in the subject-matter of the suit and the right to its immediate possession. Brewer v. Strong, 10 Ala. 961, 44 Am. Dec. 514; 9 R. C. L. 149, § 3. This he could do by showing that he acquired the title from the defendants jointly or severally, through the same or different conveyances, or from any other source. The rulings of the trial court were not in accord with these views, and the judgment of nonsuit will be set aside and annulled and the cause remanded for new trial. Reversed and remanded.