This action was brought by the appellee against appellant, sheriff of Randolph county, for the wrongful taking of an automobile, which was alleged to be the property of the plaintiff, and which was levied on and sold by the defendant, under an execution in his hands as sheriff. The case went to trial on counts 4, 5, and 6, which were counts in trover and trespass. The demurrers to the amended complaint were properly overruled. The description of the property as one automobile was sufficient. Joseph v. Henderson, 95 Ala. 213, 10 So. 843. The plaintiff's testimony tended to show that he owned and had title to the automobile alleged to have been converted, and that he did not claim it by virtue of a mortgage or lien, and, if the jury believed his testimony, his title was sufficient upon which to predicate an action of this character. The trial court will not be put in error for sustaining plaintiff's demurrers to plea 4, for the demurrers are nowhere set out in the record, and the plea appears to be subject to demurrers in that it failed to allege that the property levied on was subject to levy and sale under the execution. If the question to the witness Hooton was objectionable, advantage cannot be taken thereof, because no motion was made to exclude the answer thereto, which was given without objection. The objection to the statement made by the plaintiff, "that I accepted it in lieu of the horse," was not subject to objection. Plaintiff's contention was that he had a mortgage on the horse and other property, and that he purchased of the mortgagor the horse, paid him for it, and authorized the mortgagor to trade the horse for the automobile, and hence the statement, in the light of plaintiff's other testimony and his contention, was admissible.
The witness Wood's knowledge of any trade that may have been made whereby Yarbrough traded a bay mare with his son for a Ford car and had traded the Ford for the Case car — the Case car being the one levied on — was based on hearsay, and for this reason, if for none other, was subject to objection.
The question to the witness Robertson, "you were indemnified by Nichols Hawley Company," was not subject to the general objection made thereto, and, if so, no motion was made to exclude the answer thereto.
The trial court evidently thought that the genuineness of the mortgage given by Yarbrough et al. to the plaintiff, which embraced the bay horse, had been attacked, and some of the testimony did have this tendency; and for this reason, no doubt, permitted the plaintiff (mortgagee) to state as to the consideration for the same, and in so doing we cannot say reversible error was committed.
The trial court did not commit error in submitting the case to the jury and refusing to the defendant the general affirmative charge. The evidence was very much in conflict, and there would have been error to direct a verdict. Counsel for appellant argues that the court committed error in refusing to give written charge No. 3, when as a matter of fact the charge is marked, "Given, Brewer, Judge," and this charge being given and being the same as refused charge No. 2, the appellant has no cause for complaint.
Finding no reversible error, the case must be affirmed.
Affirmed.