PINCKARD v. ABEL, 200 Ala. 64 (1917)

75 So. 392

PINCKARD et al. v. ABEL.

7 Div. 864.Supreme Court of Alabama.
April 5, 1917. Rehearing Denied May 17, 1917.

Appeal from City Court of Gadsden; John H. Disque, Judge.

Motley Motley, of Gadsden, for appellant. Hood Murphree, of Gadsden, for appellees.

ANDERSON, C. J.

This was a trial of the right of property, and it may be conceded that the defendant gave the mule in controversy to his son, the claimant, and that it was liable to the plaintiff’s judgment, but the claim also involved a one-third interest in a milling outfit, and as to which the claimant’s title was a question for the jury. Therefore the charge refused the plaintiff (the affirmative charge) was bad in form and was misleading, and its refusal was not reversible error. Cochran v. Kimbrough, 157 Ala. 454, 47 So. 709. Since reversible

Page 65

error cannot be predicated upon the refusal of this charge, no reversible error can be grounded upon the denial of the motion for a new trial upon this point. As to the ground that the verdict was contrary to the evidence: It was not contrary to the evidence as to a part of the property, and, if contrary to the weight of the evidence only as to the mule, the motion should have been separable, and ought not to have gone to the whole verdict. In this kind of a proceeding there could have well been a double finding, that is, “We, the jury, find for the claimant as to the one-third interest in the mill, and further find that the mule belonged to the defendant and was subject to the plaintiff’s execution.”

The judgment of the city court must be affirmed.

Affirmed.

MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.