Pruett v. Gunn

The plaintiff offered evidence of his possession and title to the horse and that the defendant was in possession at the commencement of the suit. The defendant attempted to justify the detention by showing that he held the horse, under the levy of an execution, held by him as constable against the plaintiff’s father, Jack Gunn, and that the horse was the property of said Jack Gunn. “The gist of the action of detinue is the wrongful or tortious detention of the property, not the original caption, and it is regarded as wholly unimportant whether the defendant’s possession was acquired by bailment or trespass.” — Oliver v. McClellan, 21 Ala. 675; Salter v, Pearce, 4 Ala. 669, Con*125ceding therefore, without deciding, that the taking by Darden and Riddle of the horse from the lot, whether with or without the knowledge and consent of the defendant, Pruett, was tortious, yet he seized the horse under the execution after it had been taken to Goodwater and detains his thereunder, and if the execution was valid and the horse belonged to the defendant, under said execution, and not to the plaintiff, the detention thereunder was rightful, and should defeat plaintiff’s recovery in this action of detinue. As there was proof admitted as well as other evidence offered, and improperly excluded, tending to show that the horse, in fact, belonged to Jack Gunn, and that the plaintiff merely held him as a man of straw and for the purpose of defrauding his father’s creditors, the trial court erred in excluding the execution as evidence. It was a question for the jury as to whether or not the horse really belonged to the plaintiff or his father, and if it belonged to the father the defendant had the right to retain it under said execution.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.