Hoge v. Herzberg

SHARPE, J. As amended the complaint in this cause consisted of counts numbered, respectively, 4 and. 5. Omitting a statement therein of damages, count 5 is as follows: “The plaintiff claims of defendant the further sum of $150.00 damages for deceit in the. sale of one bale of lint cotton, which the defendant sold to plaintiff as his own property and at the time of the sale knew to be the property of another and upon Avhich the owner had executed to Thos. L. Johnson & Co., a mortgage of which defendant had notice, yet defendant sold said, cotton as his own, thus deceiving plaintiff and thereby inducing him to buy said cotton to his injury, and after said sale plaintiff was sued by Thos. L. Johnson & Co., for the conversion of said cotton, and plaintiff says that he gave defendant notice of said suit, and that Thos. L. Johnson & Co. recovered judgment against him for the conversion of said cotton for the sum of, to-wit,” etc. [441] To the action it ivas pleaded in abatement merely that at the time the action was commenced and when the plea was filed, defendant had a permanent residence in a county other than that of suit. This plea was subject to the demurrer thereto interposed. Whatever may have been the character of count 4 of the complaint', count 5 above set out, is clearly in tort and was, therefore, one which under section 4205 of the Code, the plaintiff had a right to bring either in the county of defendant’s residence or in that where the wrong was done. Since the plea, went to the maintenance of the action as a whole it is immaterial to the question of venue whether count 4 was on contract or in case. In appellants brief it is suggested that “There is no competent evidence shown in the record that there ever was a mortgage on the cotton,” and that evidence of the judgment, of T. L. Johnson & Company was improperly admitted. The bill of exceptions does not purport to show all the evidence, nor does it negative that there was competent evidence of the mortgage, and a familiar rule forbids that the court be put in error unless error be affirmatively shown. Assuming in accordance with that rule that there was competent, evidence of the mortgage, evidence of the judgment was relevant on the subject of damage. The case was tried under section 15 of the act “To declare the powers and jurisdiction of the city court of Gadsden, in Etowah county” (Acts, 1900-01, p. 1288) which provides “that in the trial of any cause at law, either civil or criminal, without a jury in said city court in addition to the question which may be under existing laAvs presented to the Supreme Court for review, either party to the civil cause, or the defendant in the criminal cause, may- by bill of exceptions, also present for review the conclusions and judgments of this court on the evidence, and-the Supreme Court shall review the same,” etc. Here it does not appear from the bill of exceptions that the conclusion or judgment of the court on the evidence was excepted to, and there being-no other authorized mode of presenting the same for review this court is without jurisdiction to review or pass [442] on the judgment rendered on the merits of the cause. Denson v. Gray, 113 Ala. 608; Williams v. Woodward Iron Co., 106 Ala. 254; Hood v. Pioneer, etc., 95 Ala. 461. The above disposes of the assignments of error insisted on in appellant’s briefs. Those not insisted on are: considered as waived. Judgment affirmed.