Stuart v. Mitchum

DOWDELL, J. This action is what is .known as a statutory claim suit for the trial of the right of-property to an engine, boiler, and saw and attachments, levied upon by execution, as the property of the defendant in execution, under a judgment, in favor of the plaintiff against J. M. Mitchum. A claim was interposed by J. T. Mitchum, and on the trial issue was duly made up under the direction of the court. The plaintiff introduced evidence making a prima facie case, and then rested. The claimant in offering evidence sought to prove by D. W. Speake the contents of a mortgage from J. M. Mitchum, the defendant in execution, to J. T. Mitchum, the claimant, covering the property in dispute, also the contents of a lost bill of sale to the same, property from, the defendant to the claimant. This evidence was objected to by the plaintiff on the grounds that a sufficient predicate had not been shown for the introduction of secondary evidence, and that the evidence was “insufficient and incompetent.” The witness testified that a few days previous to the time of the trial he had these papers in his [551] desk, and took them out with a view of having them at the trial, and laid them on his desk, and that he had not seen them.since, that they were not on the desk where he put them, and that he had made search for them but could not find them, and.did not know where they were. This witness was claimant’s attorney. The predicate made was sufficient for the introduction of secondary evidence as to the contents of the lost papers. The other grounds of objection were without merit: The existence and loss of the original papers having been shown, rendered the secondary evidence competent. The sufficiency of evidence is a question for the jury. The objection was not specific and did not point out a want of sufficient knowledge by the witness of the contents of the lost papers to qualify him to testify, hut were general on the grounds of “ineompetency and insufficiency of the evidence.” The hill of exceptions does not show any ruling' by the court on the motion to exclude the testimony of the witness Bailey, and consequently the assignment of error as to this is without foundation. There was no error in excluding the evidence of the witness Banks as to the contents of the lost bill of sale. He stated that he did not recollect the contents, and that which he did state, and which was excluded, was merely his opinion as to whether the paper was a bill of sale or a mortgage. This was clearly illegal evidence. Of the written charges refused to the plaintiff, those numbered 6, 16 and 17, find substantial duplicates in written charges 7, 14, and 15, given at plaintiff’s request, and, consequently, there was no error committed as to these refused charges. The refusal of the court to give written charge numbered 4, requested by the plaintiff, is assigned as error, and the only insistence by counsel for appellant in argument is, “that the refusal to give this charge is assigned as error on the ground that it is analogous to removing mortgaged property, and failure to record the mortgage in the county into which the property is removedciting section 999 of the Code. We confess that we are unable to see any analogy between a bill of sale and a mortgage, besides, [552] tbe law does not require, that a bill of sale shall be recorded. Tbe giving of a charge requested in writing is not reversible error, merely because it may tend to mislead tbe jury. Tbe adverse party in such case should ask an explanatory charge to counteract the supposed misleading tendency.—Evans v. State, 120 Ala. 269. Charge numbered 8, given at the request of the claimant, was, however, something more than merely misleading in its tendency. It was under the evidence prejudicial to the plaintiff. The mere form of a sale under the McEntire mortgage, of the property in question, after the McEn-tire mortgage had been satisfied, although the mortgagor consented, did not, as against the plaintiff, give the claimant, as good a title, as if the sale had been a valid sale; and especially is this true since nothing was paid by the. claimant under said pretended sale, nor was it intended that anything should be paid. The giving of this charge was error, and for which the judgment of the court below must be reversed and the cause remanded. Reversed and remanded.