Gurganus v. Brown

de GRAFFENRIED, J. — In the case of Ryall v. Epps, 122 Ala. 662, 26 South. 1033, a suit was brought in trover by Ryall against Epps to recover damages for the conversion by the defendant of some cattle. The defendant claimed that he did not convert the cattle, because he had bought them at a poundkeeper’s sale. A local act of the Legislature, passed for the purpose of preventing stock from running at large in Marengo county, authorized the impounding of cattle found running at large, and provided a method for the sale of such cattle. The sale at which Epps bought was had under that act. In that case this court said: “On this appeal the court holds that, where title was claimed [533] through an impounding under the statute establishing a district in which stock is not allowed to run at large, the burden is on him who claims under such title to show affirmatively that such statute has been strictly complied with.” In the instant case plea 4, which the reporter will set out, shows that title to the stock was claimed by the defendant through an impounding under an ordinance, and, while the plea sets out the ordinance, it does not allege that notice was given to the owner of the impounding of his stock, as required by the ordinance. It must be remembered that, when the sufficiency of a plea is tested on demurrer, all reasonable intendments are indulged against the pleader. In this case we direct attention to the fact that plea 4 avers that the animals were confined in a “pen, advertised and sold by the defendant acting as marshal,” etc., “under and by virtue of and in accordance with the provisions of” the ordinance which is set out in the plea. This court might be justified, in order that it might uphold the action of the trial court in overruling the demurrer to the plea, in holding that, as the plea averred that the animals were confined in a “pen, advertised and sold,” etc., in accordance with the provisions of the ordinance, the plea sufficiently averred that the pen in which the hogs were confined was a pen “provided therefor” by the town of Cordova as required by the ordinance, and that five days’ notice of the sale was given as required by said ordinance. But this plea nowhere says anything about notice to the owner, and the ordiance expressly requires that notice shall be given to the owner “within forty-eight hours after taking up any hogs,” etc. The right which the defendant set up as a defense to this action was a right claimed under a penal ordi [534] nance, and such ordinances are always to be strictly construed against the party asserting rights ' under them, and it is a familiar rule of pleading that pleadings which seek to1 enforce a right created by statute should allege every fact necessary to show that the right is enforceable. “In actions by which it is sought to declare and enforce the lien given by statute to mechanics, material-men, and the like, every fact necessary to the creation of the lien must be alleged and proved. This is the general rule of pleading which is applied with much strictness to this class of actions.” — Cook v. Rome Brick Co., 98 Ala. 409, 12 South. 918. Under the above-quoted rule, which, under the decision of this court in Ryall v. Epps, supra, is applicable to the instant case, the above plea 4, tested on demurrer, was not sufficient, and the trial court committed reversible error in overruling the demurrer to the plea. There are numerous other assignments of error; but the questions presented by them may not occur on the next trial of this case. Reversed and remanded. Dowdell, O. J., and Anderson and Mayfield, JJ., concur.