Kinney Bros. v. Johnson

RICE, J. Tbe motion to strike the-bill of exceptions is overruled. The correction made by tbe trial judge in same, assuming that it was made, was not outside his prerogative. Holloway et al. v. Henderson Lumber Co., 194 Ala. 181, 69 So. 821. This was a suit by appellants against appellee seeking to recover certain personal property, or damages for tbe conversion thereof. The property in question was originally owned by one Speegle, and appellants claimed title by virtue of a certain mortgage executed by Speegle to them iu March, 1920. Appellee, who took the property from Speegle, sought to justify his action by a mortgage from Speegle to him tinder date of January 24, 1920. Appellee also claimed that appellants’ mortgage above mentioned bad been paid before suit was brought. Tbe issues seem to have been clearly outlined to tbe jury. There was ample evidence to support tbe verdict in- favor of appellee. Hence it was not error to refuse, the general affirmative charge requested by appellants. The charge made the basis of appellants’ assignment of error No. 1 seems to us to state tbe law correctly, and its giving was not error. While the witness Verdie Kinney might, it seems, have been properly allowed to state that tbe mortgage taken in 1921 was taken as additional security for tbe 1920 indebtedness, though we do not decide that she might, yet it is so clearly apparent from a reading of the whole record that granting the motion to exclude her answer, to this effect, to the question put to her, done in the perfunctory way disclosed, worked no hurt to the appellants; that we would not predicate reversible error upon the trial court’s action in doing so. We have examined the other assignments of error, but do not deem it necessary to discuss them in detail. It appears easily that appellants and appellee bad their respective contentions fairly put before a jury under correct legal instructions. The loser merely lost. There appears no prejudicial error, and judgment is affirmed. Affirmed.