Opinion
7 Div. 798.
March 22, 1928. Rehearing Denied May 31, 1928.
Appeal from Circuit Court, Clay County; E. S. Lyman, Judge.
John A. Darden, of Goodwater, for appellants.
Demurrer to pleas 3 and 4 should have been sustained. Under Code, § 7404, defendant's plea of general issue admits possession. Section 7402 does not apply in this case. McDaniel v. Sullivan Bramlett, 144 Ala. 583, 39 So. 355; Bettis v. Taylor, 8 Port. 564; Code 1923, §§ 6743-6747, 8372; Spencer v. Leland, 178 Ala. 282, 59 So. 593; Staples v. City Bank Trust Co., 194 Ala. 687, 70 So. 115; Keeble v. Jones, 187 Ala. 207, 65 So. 384. The judgment is against the plaintiffs and their sureties for costs. This is unauthorized; there could be no judgment against the sureties for costs. Code 1923, §§ 7391, 7392, 7394; Clem v. Wise, 133 Ala. 403, 31 So. 986; Rand v. Gibson, 109 Ala. 266, 19 So. 533; Jordan v. Appleton, 209 Ala. 290, 96 So. 195; Pocahontas Graphite Co. v. Minerals Separation N. A. Corp., 215 Ala. 225, 109 So. 873.
Pruet Glass, of Ashland, for appellee.
Brief did not reach the Reporter.
Statutory action of detinue. Judgment for defendant. Appeal on the record. No bill of exceptions.
So far as we are able to gather the facts, or alleged facts, from the pleadings, there was no reversible error in overruling the demurrers to defendant's pleas 3 and 4. There was, however, no necessity for special pleading. The general issue, adequately pleaded, sufficed to present every question raised on the pleadings. Foster v. Chamberlain, 41 Ala. 158, 165; Carlisle v. People's Bank, 122 Ala. 446, 26 So. 115; Pinckard v. Bramlett, 165 Ala. 327, 330, 51 So. 557; Knight v. Garden, 196 Ala. 516, 518, 71 So. 715. However, the pleas in question presented a good defense — substantially the same in both pleas — because they showed defendant to hold by assignment, good as against one at least of the two plaintiffs a lien with the right of possession, so that one of the plaintiffs, having no right to recover possession as against defendant, could not improve his right by joining another who had a right. The right of plaintiff in an action of this sort must be entire and exclusive. 18 C. J. 996, note 11, where numerous cases from this jurisdiction are cited. A different conclusion would follow if it had appeared that defendant had no interest in the property. Morningstar v. Stratton, 121 Ala. 437, 25 So. 573.
Nor was there error in striking plaintiff's special replications, for the reason that, assuming there was merit in the matter so pleaded, that fact could have been shown under the general replication sufficiently pleaded. The authorities cited first above will serve to show there was no reversible error at this point.
If defendant had a lien, under the statute (section 8863 of the Code), on the automobile truck in suit, and the facts alleged showed such lien, he had a right to possession which would defeat the action in detinue. Beck v. Crow, 204 Ala. 295, 85 So. 489. The lien claimed, but denied, in Forbes v. Alabama Machinery Co., 176 Ala. 423, 58 So. 398, was a lien claimed under the Code creating liens on real estate in favor of mechanics and materialmen. That case is not in point. An equitable title will not support the action of detinue, but such title, with the right to possession as against the plaintiff, will defeat such action.
We are unable to see that sections 6743-6747 have any bearing on the case presented by the record — a case, as we have said, of detinue for the recovery of an automobile truck.
The judgment against plaintiffs and the sureties on the replevy bond followed the statute (section 7389 of the Code) and the terms of the bond given by plaintiffs. There was no question as to judgment under section 7394 of the Code, for defendant had availed himself of the privilege afforded by section 7389, and had retained possession. When verdict and judgment went for defendant, as they did, plaintiffs and the sureties on their bond were liable only for costs. Different questions were involved in the cases cited to this point by plaintiffs appellants.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.