Opinion
8 Div. 356.
October 27, 1925.
Appeal from Morgan County Court; W. T. Lowe, Judge.
Action in trover by J. W. Lindsey against A. Polytinsky. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Sample Kilpatrick, of Hartsells, for appellant.
Defendant was entitled to the affirmative charge, and its refusal was error. Johnson v. Coosa Mfg. Co., 16 Ala. App. 649, 81 So. 141; First Nat. Bank v. Harden, 17 Ala. App. 165, 82 So. 655.
Tennis Tidwell, of Albany, for appellee.
The affirmative charge should never be given for defendant, where there is any evidence tending to establish plaintiff's case. Schmidt v. Joseph, 65 Ala. 475; Seals v. Holloway, 77 Ala. 344; Gillespie v. Battle, 15 Ala. 276; Payne v. Mathews, 92 Ala. 585, 9 So. 605.
The judgment entry recites: "Defendant demurs to complaint as amended." No such demurrer appears in the record, and hence we presume the court did not err in overruling this demurrer. Moreover, according to the recitals in the judgment, the demurrer went to the entire complaint, composed of 12 separate counts. If any of the counts were good, and we think they all are, any demurrer going to the entire complaint would be properly overruled.
The plaintiff held a mortgage given by one Sharpley on crops raised by him in 1920. Sharpley had crops on two places during the year 1920. As to one of these places (the Weir place), plaintiff's mortgage was valid and binding; as to the other (the Bolden place), plaintiff's mortgage was not valid, Sharpley having acquired the crops on the Bolden place subsequent to the execution of the mortgage. There is no evidence identifying the cotton and cotton seed bought by defendant as being cotton raised on the Weir place. The burden is on plaintiff of showing by the evidence that the cotton purchased by defendant was covered by the mortgage under which he claimed title. The defendant was entitled to the general charge. First National Bank of Alex. City v. Harden, 17 Ala. App. 165, 82 So. 655; Johnson v. Coosa Mfg. Co., 16 Ala. App. 649, 81 So. 141.
For the error pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.