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(100 So.)

, and of defendant's daughter, "Turn that baby HARRIS V. HARRIS. (8 Div. 646.) loose. Papa said he would kill it before he

left home"-were admissible as res geste, be(Supreme Court of Alabama. May 1, 1924.) ing directly connected with the main transac

tion. 1. Appeal and error 713(3)-Pleadings, rulings, and charges given and refused should 8. Assault and battery ww31-Answer of debe incorporated in record proper, not bill of fendant, "I knew I had not hurt her," held exceptions,

admissible as within probable knowledge. Under Code 1907, § 5364, as amended by The complaint having alleged that defendGen. Acts 1915, p. 815, and Supreme Court ant did beat, bruise, etc., and defendant having rule 26, complaint, demurrers thereto, pleas, answered a cross-question whether he had hurt replication and demurrers thereto, court rul- plaintiff, "I went on; I knew I had not hurt her," ings, oral charge, written charges, given by the court improperly allowed the words "I request or refused, should be incorporated in knew I had not hurt her" to be stricken and the record proper, and not in bill of exceptions. refused to allow defendant's counsel to ques2. Appeal and error w655(2)-Appellee's mo- able knowledge.

tion for the facts being within defendant's probtion to strike matters improperly incorporated in bill of exceptions refused.

9. Trial Cm 121(2)-Argument that plaintiff Appellee's motion to strike matters im was persecuting her husband with legal acproperly inserted in the bill of exceptions, but

tions held justified, harming appellee only by increasing cost of ap 'In wife's suit against husband for assault peal if she failed, should be refused, since on and battery after separation, evidence showing proper application, such cost would probably be other suits and a prosecution for same offense taxed to appellant.

held to justify defendant's argument that wife

was persecuting defendant with legal actions, 3. Exceptions, bill of 23-Bill of exceptions and court's interruption, on its own motion, held to sufficiently identify motion for new

was prejudicial.
trial,
Statement in bill of exceptions, "Said mo-

10. Parent and child O2(4)-After voluntary tion is as follows: (the clerk will set out the separation, equity may give custody of chilmotion appearing on the motion docket]"-re

dren to either. ferring to motion for new trial attached at or Under Code 1907, § 4503, on voluntary sepanear above statement, identical to the motion ration, equity court may permit either spouse appearing in the transcript in proper form, suf- to have custody and control of children. ficiently identified it.

11. Husband and wife 205(2)-After volun. 4. Assault and battery w 24(1)-Complaint tary separation, wife may sue husband for held to state cause of action.

forceful taking of child from manual possesComplaint alleging that defendant "did sion. wrongfully and unlawfully beat and cruelly If a father, after voluntary separation, treat, bruise, wound, and injure plaintiff," more takes a child in rudeness and anger, by force, than complies with Code 1907, p. 1198, form No. from the actual manual possession of the 18, which is sufficient under section 5382; con- mother, whether spouses are living together or junctive use of "cruelly treat" with "beat, apart, the mother may sue for damages from bruise," etc., not rendering the entire count de- injuries proximately resulting, murrable. 5. Appeal and error em 194(1)-Plea not chal Appeal from Circuit Court, Marshall Counlenged, demurred to, nor joined issue, on not ty; Leon McCord, Judge. reviewable.

'Action for damages for assault and battery A plea which plaintiff neither challenges for by Mollie Harris against John Luther Harris. sufficiency, demurs to, nor joins issue on, though Judgment for plaintiff and defendant apreplied to, is not reviewable,

peals. Transferred from Court of Appeals 6. Assault and battery Ca 24(2)-Replication under Acts 1911, p. 449, § 6. Reversed held sufficient as against demurrer.

and remanded. In wife's suit against husband, after vol

These grounds of demurrer were interuntary separation for assault and battery in recapturing a child, plaintiff's replication al- posed to plaintiff's replication to defendant's leging that she was the mother, that the child plea 2: was female, less than three years old, and in

It is immaterial that plaintiff was the plaintiff's peaceful possession, held sufficient as mother of the child. against demurrer.

The avernient of plaintiff's peaceable pos

session of the child is a conclusion, 7. Evidence fm 121(14)-Remarks of child dur.

In this case the age of the child is not ing struggle for its possession between separated spouses held admissible as res gestæ.

material.

The sex of the child is not material. In suit by wife, after voluntary separation, against husband for assault and battery in re

The fact that plaintiff was the mother of capturing child from her, remarks of the child the child did not justify her in going to deduring the struggle, "Hold me mamma!

** fendant's home and taking it without his He hurt my sore head; he is going off with me,” | knowledge or consent.

For other cases see same topic and KEY-NUMBER in all key-Numbered Digests and Indexes

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That such fact did not justify her in restion of the motion therein, we must hold the sisting defendant's efforts to regain it. motion for new trial was sufficiently identi

Street & Bradford, of Guntersville, for ap fied, so the clerk could readily decide what pellant.

document (motion) was intended to be inJohn A. Lusk, of Guntersville, for appellee. serted in the blank place unaided by memory.

The motion to strike it from the bill of excep MILLER, J. The appellee, Mollie Harris, tions is refused. 'Fuller v. Fair, 206 Ala. 654, brings this suit against John Luther Harris,

91 South. 591. her husband, for damages for an assault and

[4] The complaint alleges that defendant battery committed by him on her wrongfully did wrongfully and unlawfully, beat and and unlawfully. There was judgment for cruelly treat, bruise, wound, and injure the the plaintiff on verdict in her favor by the plaintiff.” It more than complies with form jury, and this appeal is prosecuted therefrom No. 18, p. 1198 of the Code of 1907, which is by the defendant.

sufficient under the statute. Section 5382, [1, 2] The complaint, demurrers to it, pleas,

Code 1907. The words therein "cruelly replication and demurrers to it, and the treat,” alleged conjunctively with the words several rulings of the court thereon, oral "beat, bruise, wound, and injure,” did not charge of the court, written charges given by render the entire count demurrable. The the court at the request of each party, and count states a cause of action, and the court written charges refused to the appellant, did not err in overruling the demurrers or appear twice in the transcript, once in the defendant to it. Form 18, p. 1198, Code record proper and again in the bill of excep- 1907; Irby v. Wilde, 150 Ala. 402, 43 South. tions. The appellee files motion to strike

574. them from the bill of exceptions. These mat

(5, 6] The defendant pleaded general isters should be incorporated in the record sue and special plea 2, which alleged that proper, and not in the bill of exceptions. plaintiff

, without the knowledge or consent Section 5364, as amended Gen. Acts 1915, of defendant, wrongfully took from the dep. 815; Beck v. West, 91 Ala. 312, 9 South. fendant the possession of his infant child, 199; Powell v. Henry, 96 Ala. 412, 11 South. was fleeing from defendant's home with the 311; Rule 26 of Supreme Court. Neither child, and the defendant immediately after this rule nor the act prohibits their incor- learning of it pursued and overtook her while poration in the bill of exceptions. The ap- still in flight, and did then and there retake pellee is not injured by it, except, if she fails the child from plaintiff, and in doing so emin this appeal, this would increase the cost ployed no more force - than was reasonably thereof in making the record, and probably necessary to regain possession of the child, on proper application the appellant should be and that he used such force in a reasonable taxed with this part at least of the court cost. This part of the motion to strike them

The sufficiency of this plea (No. 2] was not from the bill of exceptions is refused.

challenged by the plaintiff by demurrer. She [3] The appellee also files motion to strike did not even join issue on it, so we cannot from the bill of exceptions the motion for a

discuss it. She replied to it, and for replicanew trial because it was not sufficiently identified and designated in the bill of ex- “That she was the mother of the child menceptions as the matter to be incorporated in tioned therein, which was an infant girl child of the blank place. The bill of exceptions less than three years of age, and the plaintiff states:

was then and there in peaceable possession of

said child."
"There was judgment of the court in favor of
plaintiff for $250, a judgment of the court Demurrers of defendant to this replica-
thereon, and to set aside which and to granttion to plea 2 were overruled by the court,
a new trial the following motion in writing was and as to this the was no error in over-
made by defendant, submitted to the court, was ruling the grounds assigned to it.
overruled by the court, and defendant duly ex-
cepted."

The plaintiff is the wife of the defendant.
They had one child, the girl of three years

They separated, the wife leaving
The bill of exceptions then states:

his home. She had a daughter by a former "Said motion is as follows: (The clerk will marriage, and he had a daughter by a set out the motion appearing on the motion former marriage. The plaintiff with her docket.)”

daughter went to his home, got this little

child of theirs, and was going away with it There is attached to the original bill of ex- in a buggy drawn by a mule, and the father ceptions, which is before us, at or near this (defendant). upon hearing of it, took his place therein, a copy of this motion for new daughter, went in an automobile in pursuit trial, the•ruling of the court thereon, and it of this child, and overtook them while travelis the same as the motion appearing in the ing in the buggy on the public road, the transcript. From this copy of the motion in child being held by the plaintiff (the mother). the bill of exceptions and from the descrip. He caught hold of the child and took it from

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of age.

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(100 So.) the mother and carried it back to his home, I county court growing out of this transaction, and then into De Kalb county.

and that she also had a suit pending or The evidence for the plaintiff tended to tried in the circuit court in equity growing show when the defendant overtook her he out of this matter, and that she is seeking stopped his car, and he and his daughter got damages in the circuit court in this cause out, and he grabbed the bridle of the mule, growing out of it. The attorney for desnatched at plaintiff an the child, and “grab- fendant in his argument to the jury stated: bed hold of us, slammed us backward and

"She persecuted him in the county court, and forward in the buggy,” and jerked plaintiff it grew until she persecuted him in the chancery and the child from the buggy. During this court, and it grew until she persecuted him in time his daughter was holding plaintiff's the circuit court in this case." daughter. The arm and breast of plaintiff was bruised by him. The evidence for

The court from the bench on its own mo

tiondefendant tended to show that when he reached the buggy of plaintiff she took the "called to the counsel and stated: The court child in her lap, and said “Let this baby declines to permit the statement to the jury alone;" and he took hold of the child un that any one is being persecuted in this court. der its arms and shoulders, and pulled her Mr. Street to the Court: The court on its

own motion without objection from the other out of her mother's arms, without slamming or jerking either the child or the mother, side: The Court: Yes; the court of its own

motion did so."
and carried it back to his home. The evi-
dence of defendant also tended to show that The defendant duly excepted to this action
he did not touch plaintiff or bruise her. of the court. This statement by the attor-

[7] The court properly permitted the plain- ney from the evidence in the case was not
tiff to prove that the child said "Hold me, beyond the pale of legitimate argument. It
mama, hold me, mama! he hurt my sore was a legitimate inference from the evidence
head; he is going off with me”-and, further, to be permitted in argument to the jury by
that the daughter of defendant said: “Turn the attorney for the defendant. In Hobbs v.
that baby loose; papa said he would kill it State, 74 Ala. 41, this court held:
before he left home." These statements

"Every inference counsel may think arises out
were made in the presence of the parties, in of the testimony" is a "legitimate subject of
their hearing, and during the struggle for the criticism and discussion.”
child. It was a part of the res gestæ, and
competent evidence to be considered by the

In Cross v. State, 68 Ala. 485, this court, jury. It is directly connected with the main discussing the subject of confining counsel transaction. Young v. State, 149 Ala. 16, to legitimate argument in a case, properly 43 South. 100; Raymond v. State, 154 Ala.

said: 1, 45 South. 895.

"It is the duty of the circuit courts, in jury [8] The plaintiff on cross-examination of trials, to interfere in all proper cases of their the defendant asked him the following ques

own motion. This is due to truth and justice." tion: "You did not stop to see whether you hurt her?” He answered, “I went on; I

But this court also declared in the Cross knew I had not hurt her.” The court on mo

Case, supra: tion of plaintiff then excluded this: "I knew "Every fact the testimony tends to prove, I had not hurt her”—and the defendant duly every inference counsel may think arises out of excepted. The court would not permit de- the testimony, the credibility of the witnesses, fendant's attorney to ask the defendant,

as shown by their manner, the reasonableness

of their story, their intelligence, means of "Did you hurt the woman or not?" or "Did knowledge, and many other considerations, are you injure Mrs. Harris in any way on that legitimate subjects of criticism and discussion." occasion ?" The questions called for facts. The witness answered he “knew he had not It was shown in evidence that the plainhurt her.” These were facts probably within tiff prosecuted the defendant for this ofhis knowledge and observation. It was ca- fense in the county court; that she had a pable of being known to him. The complaint suit or testified in a suit against him in alleged the defendant did beat, bruise, the equity court growing out of the transacwound, and injure plaintiff. The plaintiff tion involved in this case. This was the testified he jerked her out of the buggy, third case against him. Blackburn v. Minter, bruised her breast and arm. This was a 22 Ala. 613. The attorney by this argument material inquiry in the case. The court erred from the evidence charged that the plaintiff in these rulings. The answer of the wit- (not the court) by the many suits against the ness was improperly ruled out, and the defendant was persecuting him in such court. court should have allowed defendant to This argument of the attorney, excluded by answer the questions. The plaintiff could the court, was a legitimate inference from have fully tested his knowledge, if any, on the evidence as presented by the defense. the subject by cross-examination.

The court erred in this ruling; and, coming [9] There was evidence that the plaintifr direct and as it did from the court ex mero prosecuted the defendant criminally in the motu it was calculated to prejudice the cause

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of the defendant with the jury. Authorities 13. Appeal and error coma L058(1)-Rejection of supra.

testimony subsequently admitted without ob[10] In case of voluntary separation of jection not prejudicial. husband and wife a court of equity has The rejection of testimony subsequently power to permit either, the father or the admitted without objection is not prejudiciai. mother to have the custody and control oť

4. New trial em 162(5)-Reduction of verdict the children. Section 4503, Code 1907.

on denial of motion approved. [11] It would be wrong for either parent in rudeness or in anger to take by force their tion in reducing the amount of the verdict,

On motion for new trial, the court's acehild from the actual manual possession of plaintiff's consent, and judgment accordingly, the other, whether they are living together or is approved. apart; and if the father did so, then an action for damages therefor may be maintained by the mother, if she is injured as a proxi- County; S. L. Brewer, Judge.

Appeal from Circuit Court, Chambers mate consequence thereof. Hayes v. Hayes, 15 Ala. Apr. 621, 74 South. 737; Johnson

Action for conversion by the Eady-Baker v. Johnson, 201 Ala. 41, 77 South. 335, 6 A. Grocery Company against A. Z. Cumbee. L. R. 1031 ; Wilson v. Orr, 210 Ala. 93, 97 Judgment for plaintiff, and defendant apSouth. 133, headnote 11-12.

peals. Transferred from Court of Appeals Written charges numbered 1, 2, 3, 4, 5, 6, under section 6, p. 449, Acts 1911. Affirmed. and 7, requested by the defendant, are not in

Jas. A. Hines, of Lafayette, for appellant. harmony with the principles of law above

Morrow & Moore, of West Point, Ga., and declared, as applicable to this cause, and the Denson & Denson, of Opelika, for appellee. court properly refused each one of them, and a separate discussion of each is not neces

GARDNER, J. Action in trover by appelsary.

There are many other errors assigned on lee against appellant for the conversion of parts of the oral charge of the court and the a number of bales of cotton embraced in a argument of attorney for the defendant to mortgage executed to plaintiff by a Mrs. the jury. We need not discuss and pass on Clayton Cone on January 21, 1921, and duly these alleged errors. The judgment must recorded January 22, 1921. be reversed. The complaint may be amended,

(1) Defendant sought to justify his conan entirely different issue may be presented version of the cotton by reason of a prior on another trial, the argument of attor- crop mortgage executed by Mrs. Cone to himneys will no doubt be different, and what self on January 15, 1921, but which was not we have written is sufficient to guide the recorded until subsequent to the recordation court.

of plaintiff's mortgage, to wit, January 27, The judgment is reversed, and the cause 1921. Defendant insisted, however, that at remanded,

the time of the execution of plaintiff's mortReversed and remanded.

gage actual notice was given of the defend

ant's said mortgage; but as to this the eviANDERSON, C. J., and SAYRE and dence was in conflict and left for the jury's GARDNER, JJ., concur.

determination.

[2] One Sid Fuller was secretary of the plaintiff company, kept the books, and stated he had “personal knowledge" of Mrs. Cone's account, and that her note had not been

paid. The court committed no error in perCUMBEE v. EADY-BAKER GROCERY co. mitting the witness to further testify that (5 Div. 887.)

the full amount of the paper was still due. (Supreme Court of Alabama. May 22, 1924.) Richards v. Herald Shoe Co., 145 Ala. 657,

39 South. 615. Moreover, the witnesses tes. 1. Trial em 143—Issue on which evidence con- tified without objection as to the items of flicting for jury. An issue on which the evidence is in con- amount of the indebtedness was not a con

the account due by Mrs. Cone, and the flict is for the jury.

troverted issue in the cause. 2. Evidence 471 (34)-Permitting bookkeep- [3] The action of the court in sustaining

er, stating that he has personal knowledge, plaintiff's objection to the question addressed to testify that full amount of note repre- to Mrs. Cone, which constitutes the third senting account still due not erroneous.

assignment of error, could well be justified Where plaintiff's bookkeeper, in an action in trover for conversion of mortgaged cotton, upon the ground the question was a leading stated that he had personal knowledge of the

In no event, however, did defendant account and that the pote representing it was

suffer any injury, as the witness subsequentnot paid, it was not erroneous to permit the ly stated fully as to what she said to Kirby, witness to further testify that the full amount and her husband testified likewise--all withof the note was still due.

out objection.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

one.

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(100 So.) [4] One of the grounds of the motion for a fendant and receipt of money or chattels by deDew trial was that the verdict was excessive. fendant therefor and without claiming money Upon hearing the motion the court an so received as price or value of plaintiff's propnounced that in his opinion the verdict was

erty. excessive to the extent of $375, and that unless plaintiff would submit to a deduction of Appeal from Circuit Court, St. Clair Cointhe damages to that extent the motion for a ty; Woodson J. Martin, Judge. new trial would be granted. The plaintiff Action by P. H. Awtry against R. C. Cox, then in open court announced that it would for corn and timber sold and timber removconsent to such deduction as suggested by ed. Judgment for plaintiff, and defendant the court, and the judgment was entered ac

appeals. Transferred from Court of Ap-' cordingly. Such a practice tends to put an peals under Acts 1911, p. 449, $ 6. Reversed end to litigation, and has the approval of and remanded. this court. Western Union Tel. Co. v. North,

Conley Merchant, of Ashville, for appel177 Ala. 319, 58 South, 299; Johnson v. L.

lant. & N. R. R. Co., 204 Ala. 662, 87 South. 158.

Jas. A. Embry, of Ashville, for appellee. The case of Richardson v. B'ham. Cotton Mfg. Co., 116 Ala. 381, 22 South. 478, cited by counsel for appellant, is readily distin MILLER, J. This is a suit by P. H. Aw. guishable.

try, appelleé, against R. C. Cox, appellant, The remaining assignment of error relates on account for corn and timber sold to the to the action of the court in overruling the defendant by the plaintiff, and for timber motion for a new trial upon the ground the moved by the defendant from the land of the Ferdict was contrary to the great weight of plaintiff. There was a judgment by the the evidence. The rule by which this court court based on a verdict of the jury in fais governed upon questions of this character vor of the plaintiff, from which this appeal is well understood, and needs no discussion. ) is prosecuted by the defendant. The evidence has been carefully considered, There are seven counts in the complaint and we will not enter into discussion of it as amended, numbered from 1 to 7, both inhere. Suffice it to say the conclusion has clusive. The plaintiff withdraws counts 2, been reached that the judgment of the court 3, and 6. Count 1 is on account for $50 for below should not here be disturbed upon this corn sold by plaintiff to the defendant, with ground.

interest. Count 7 is also on account for We have considered the assignments of er- $190 for corn and timber sold and delivered, ror argued in appellant's brief, and finding with interest. no reversible error, the judgment will ac The defendant demurred to the complaint cordingly be here affirmed.

as amended on the ground of misjoinder of Affirmed.

actions, that it contains counts based on ac

tions ex delicto, and they are improperly ANDERSON, C, J., and SAYRE and MIL- joined with other counts based on actions LER, JJ., concur.

which are ex contractu, and it fails to allege or show they all arise out of the same transaction or relate to the same subject-matter, The court overruled the demurrers, Counts

1 and 7 are clearly actions ex contractu. COX v. AWTRY. (7 Div. 467.) The former is on account for $50 for corn

sold to the defendant by plaintiff, and the (Supreme Court of Alabama, April 24, 1924. Rehearing Denied May 29, 1924.)

latter is on account for $190 for corn and

timber sold. Count 7 fails to allege the corn 1. Action Ca 47--Complaint held demurrable and timber were sold by the plaintiff to the for misjoinder of actions.

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defendant; it avers they were sold and deComplaint with counts for corn and timber livered to plaintiff, but this defect is not sold and delivered, joined with counts for cut- raised by the demurrers. Form 11, p. 1193; ting and removing timber, in which plaintiff section 5382, Code 1907. did not aver sale of timber by defendant after Plaintiff in count 4 claims $500 for the its removal and gue in assumpsit for money "value of timber cut and removed by dereceived by defendant, held demurrable for misjoinder of actions ex contractu and ex de fendant or his laborers or employés upon licto, not arising out of same transaction with following lands [describing them), together in Code 1907, § 5329.

with accrued interest thereon.” This count

fails to allege that plaintiff owned the land 2. Action m31--Assumpsit for cutting and removing timber not maintainable without

or timber or both when the timber was cut averring sale.

and removed from it, but that defect is not Plaintiff cannot maintain assumpsit' for presented by demurrer. cutting and removing timber from his land by

[1] Plaintiff in count 5 claims $500 damdefendant without averring sale thereof by de- / ages for cutting and removing timber from

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 100 50.--22

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