Hooper v. Pierce

Hooper v. Pierce. Detinue. (Decided June 13, 1907. 44 South. 386.) Trial; Instructions; Evidence to Sustain. — Where plaintiff has given a forthcoming bond and obtained possession of property in a detinue suit, in the absence of the proof of the value of property, in ease the verdict is for the defendant, it is error to reversal to instruct the jury that they should assess the value of the property at a given amount in the event of a verdict for defendant. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. Detinue by A. B. Hooper against B. F. Pierce for the recovery of three bales of cotton, for which plaintiff executed Ms forthcoming bond and on which the property was delivered to plaintiff. From a judgment for defendant, plaintiff appeals. Reversed and remanded. Street & Isbell, for appellant. Counsel discuss Wo assignments of error relative to the admission of evidence and cite authorities to support their contention. They insist that charge S was unauthorized under the facts in this case, and cite in support thereof, Gersan v. Norman, 111 Ala. 433. John A. Lusk, for appellee. — No brief came to the Reporter. [MAJORITY — McCLELLAN, j.] McCLELLAN, j. Action of detinue for decovery of cotton. The plaintiff had executed in proper order a forthcoming bond for the property, and there was judgment for defendant. The bill of exceptions is silent as to any evidence of value of the property in question, and yet it appears that the court, by specially requested charge, instructed the jury that, if they found for the defendant, they should assess the value of the property at $117. The giving of this charge was error, for which the judgment must be reversed, and the cause remanded. — Gerson v. Norman, 111 Ala. 433, 20 South. 453. There are two other errors assigned, but there is no merit in them. Reversed and remanded. Tyson, C. J., and Dowdell and Anderson, JJ., con-