74 So. 441 | Ala. | 1916
In the latter part of the night of October 9, or early in the morning of October 10,-1909, the property involved
On the 13th day of April, 1910, there were instituted in the circuit court of said county two suits against the Alabama, Tennessee & Northern Railway Company, for the recovery of damages for the destruction of said property by fire. Both suits were in all respects alike, except that in the one the parties plaintiff were Joseph B. Cunningham and Andrew S. Murphy, partners, and in the other the sole party plaintiff was Aliceville Lumber & Construction Company, á corporation. In each case the defendant propounded to the adverse party interrogatories under the statute; and answers to said interrogatories, on behalf of the plaintiffs, were made by Joseph B. Cunningham, and were to the effect that the property destroyed by fire was claimed in one suit as that of Cunningham and Murphy as individuals, and in the other suit, as that of Aliceville Lumber Company, a corporation.
On the 3d day of June respondents demurred to this original bill, and on the 14th day of July, 1911, moved a dissolution of the injunction on the ground that there was no equity in the bill. After the demurrers were.overruled and the motion to dissolve was denied, the said respondents, Qn the 27th day of December, 1911, filed in said cases separate answers, and demanded a trial by jury of the issues of fact: (1) Whether the fire which consumed the properties in question was caused by, or originated through, the negligence of the complainant, its servants or agents; and (2) whether the complainant is liable for the destruction of said property by fire. Thereafter complainant and respondents took testimony by depositions. This testimony is now set out,, occupying about 200 pages of the record. At the Spring term of the chancery court (March 27, 1913) said testimony was duly published by order of the court. The case was submitted on pleadings and proof and on respondents’ motion and demand that the questions or issues above indicated be tried by jury, in either the chancery or the circuit court of said county, as set out in respondents’ respective answers. Upon the submission on the pleadings and the proof and on said motion, the court, on the 27th day of June, 1913, rendered a decree wherein it was adjudged that the chancery court, having assumed jurisdiction of the subject-matter on the grounds set out in the original bill, would proceed to the full and final adjudication of the entire case; that on the evidence but one recovery could be had; that the question of fact was one of doubt; and that the questions of fact should be decided by a jury. This decree of the chancellor holding it proper to refer said issues of fact to a jury for determination, is, in part, as follows:
*396 “It is therefore ordered, adjudged, and decreed by the court that the following issues be and they are hereby referred and certified to the circuit court of Pickens county, Ala., to be tried by a jury, and the result of the trial to be by the clerk of said court certified to this court, that is:
-“(1) Whether or not the fire which destroyed the mill, its machinery and lumber, at ,or near Aliceville, on the night of, to-wit, the 10th day of October, 1909, which mill was at'that time under the control and management of Joseph B. Cunningham and Andrew S. Murphy, either as partners doing business under the firm name of Aliceville Lumber Company, or doing business there for the Aliceville Lumber & Construction Company, was caused by the negligence of the defendant, the Alabama, Tennessee & Northern Railway company, or its agent or agents, servant or servants, either by failing to have its locomotive or locomotives equipped with a suitable spark arrester or arresters or in the negligent operation of the locomotive or locomotives whereby, as a result whereof, a spark or sparks, or coal or coals escaped from the said railroad company’s locomotive or locomotives while passing the mill above described, on, to-wit, the 10th day of October, 1909, and set fire to or destroyed, or greatly injured, or damaged, the mill, its machinery, products, and lumber.
“(2) If the jury should find the above issue in favor of the respondents in this case, and that the fire was caused by the negligence of the railroad company, its agent or agents, the jury will then determine what was the damage done by said fire to the following described property [describing said property]. If the jury should find the first issue in favor of the railroad company, it will not be necessary to determine the subsequent issues. It is further ordered that Cunningham and Murphy, or Aliceville Lumber & Construction Company be treated as plaintiff, and the railroad company as defendant, upon the trial of said issues. It is further ordered that upon the trial of said issues either party in this cause may introduce any legal evidence heretofore given in this court by deposition, as well as any other legal evidence that they may desire to introduce.”
All further questions were reserved “until the certificate had been returned to the determination of the issues above referred.” Said issues were by the register of the chancery court certified to the circuit court of Pickens county for trial by a jury pursuant to said order of the chancellor. From the certificate of the
The Alabama, Tennessee & Northern Bailway Company reserved no bill of exceptions, certified stenographic notes, or other record or certificate of the evidence on which the jury in the circuit court tried and determined the issues of fact so certified by the chancellor to that court for determination; nor certificate or other record of any rulings by the circuit court, on the reception or rejection of evidence, or on the trial of the said submitted issues of fact by the jury. The record of the proceeding thereafter had in the chancery court likewise failed to inform the chancellor, and now, on appeal from the decree of the chancellor, fails to inform this court, what evidence was before the jury, on which the issues were tried, and what evidence was excluded by the court from the jury’s consideration, or what the instructions of the court were, to the jury, on the law as applicable to the evidence adduced. Aside from the depositions on file when the cause was first submitted on the motion, and the order of submission by the chancellor to the effect that either party might introduce any legal evidence theretofore given in the chancery court by the depositions, as well as any other legal evidence that might be desired to be introduced on the trial of the issues in'the circuit court, and said certificate of the clerk of the circuit court, of the finding of the jury, this record is silent as to what transpired during said trial.
At the spring term of the chancery court (on the 20th day of March, 1914), the respondents, Cunningham and Murphy, and Aliceville Lumber & Construction Company, amended their respective answers to the said original bill, by making them cross-bills, each respondent making the other, and the Alabama, Tennessee & Northern Railway Company, parties respondent to his cross-bill, claiming the property destroyed, and denying title in the others. Each cross-bill prayed a decree against the Alabama, Tennessee & Northern Railway Company for the value of the property destroyed, with interest, and for other, further, and general relief. On the 26th day of March, 1914, each of the respondents to the cross-bills, except the Alabama, Tennessee & Northern Railway Company, filed answer to the cross-bill of the other, and the causes were continued for the answer of the Alabama, Tennessee & Northern Railway Company.
On April 25,1914, said Alabama, Tennessee & Northern Railway Company filed its answers to said cross-bills, in substance denying the allegations .therein contained, demanding strict proof of the same, and denving that the fire which destroyed the property in question was caused by the negligence of said respondent, or of its agents or employees.
At the fall term of said court (on the 2d day of October, 1914), the respective cases were submitted for final decree, by
And on the minutes of said court, of date 26th day of March, 1915, it is recited that: “This day come the parties by their solicitors, and the case is submitted on note of testimony offered on former submission and consent for decree in vacation.”
On the 1st day of June, 1915, the chancellor rendered, and (on the 5th day of June, 1915) caused to be filed and enrolled, the final decree in said causes, from which the appeal is taken.
The reporter will set out this final decree in the statemenof facts.
In this decree final jurisdiction of all litigated matters in .said causes is assumed and exercised, and the causes are determined ; and the class of cases wherein the submission of disputed facts to a jury is a matter of right (Code, § 6207), and the class of cases where a reference of such facts is made by the court (Code, § 3201) for the purpose of satisfying the conscience of the chancellor, are distinguished. It is further specifically indicated in the decree that to enable the chancery court to review the finding of facts by the jury, the entire evidence should have been certified to it, with such objections pointed out as showed that the finding of the jury was so opposed to the evidence as to be worthless as a guide to the chancellor; that this had not been done; that respondent railway company seemed to rely, for support of its motions, on objections to the evidence, without showing what the rulings of the lower court were; that the court must presume in favor of the lower court, and not against it; that it
The Whaley Case is rested on the authority of Stow v. Bozeman, 29 Ala. 397, 402, 403, where the court said: “Having obtained jurisdiction over the case on account of the misrepresentation as to the quantity of the land,” the court “should have gone on and done complete justice by settling the entire litigation, without remitting the complainant to his defense at. law as to the payments alleged to have been made on the notes. * * * If the question of fact had been of damage, or fraud, or any other peculiarly fitted for the determination of a jury, it would have been proper to have left that question for trial at law.” The Whaley Case has since been approved on this point by Tedescki v. Berger, 150 Ala. 649, 43 South. 960, 11 L. R. A. (N. S.) 1060; Farris v. Dudley, supra; Barnett v. Tedescki, 154 Ala. 474, 45 South. 904; Terrell v. Southern Railway Co., 164 Ala. 423, 51 South. 254, 20 Ann. Cas. 901; Kilgore v. Kilgore, 103 Ala. 614, 15 South. 897.
The question of issues out of chancery was first discussed in Kennedy v. Kennedy, 2 Ala. 571, where the right and duty of a chancery court to determine questions of fact is asserted, and it was declared that the chancery court should not award an issue to be tried at law, unless the proof is so conflicting as to make it difficult to attain any conclusion. There was at common law an exception to thus rule, for in England an heir at law, contesting the validity of a will, had the right to try the issue of devisavit vel non by a jury.—2 Har. Ch. Prac. 126; 2 Black. Com. 452; 2 Story’s Eq. 672. An early Alabama statute, under which this proceeding might be had, gave the chancellor the power to direct an issue of fact whenever the chancellor thought proper, in issues
In Rice v. Tobias, 83 Ala. 348, 3 South. 670, is the expression: “The statute then, as under the Code of 1876, authorized an issue of fact to be tried when ‘necessary,’ as under the old English rule of chancery practice. Such a reference, as said in Adams’ Equity, p. 376, can only be made, ‘where the evidence creates a doubt, and not as a substitute for omitted evidence; and, therefore, the party claiming the issue must first prove his case by regular depositions.’ ”
Where there was a motion to vacate an order, setting aside the verdict of a jury rendered in a will contest in chancery, this court has recently discussed the right of the chancellor to submit controverted issues of fact to a jury for trial, and it was held that the chancellor directing such trial had the power to set
In Robinson v. Inzer, 195 Ala. 491, 70 South. 717, where a court of equity had submitted a disputed question of fact to a jury for trial on the law side of the court, and a verdict had been certified therefrom in favor of the respondent, and the complainant in the court of equity had thereupon moved that the verdict be set aside and a decree rendered in favor of the complainant, this court declared that the jury trial on the law side of the court “was not an independent trial, but was a part of the chancery proceeding, and the verdict was subject to the revisory power of the chancellor.”
The exercise of this revisory power by the chancellor, over the issues of fact as ascertained and declared by the verdict of a jury, has been considered by our court. In Norwood v. Louisville & Nashville Railroad Company, supra, discussing generally the jurisdiction of the court of chancery, it is said: “No question of law can be reserved by bill of exceptions, the action of the jury is merely for the information of the chancellor, and not conclusive on his conscience or judgment, and in many respects the trial is unlike the jury trial at law that it would seem a court of chancery should, at least, demand strict conformity to the requirements of the law before interfering with the judgment of the law court.”
That the expression, “No question of law can be reserved by bill of exceptions,” had reference to review by an appellate court of the finding of the jury is made plain in Mathews v. Forniss,
It will be noted that in the Mathews Case, the bill in equity was for the purpose of contesting the probate of a will, and that in such case the trial of the disputed issue of fact by a jury was a matter of right, if such had been invoked by timely demand therefor, and that the right was waived by a final submission of the cause by agreement; no demand for such trial by jury being made.
The two cases of Adams v. Munter, and Mathews v. Forniss were decided by Judge Stone. A careful consideration of both opinions convinces us that Judge Stone had in mind the two cases in which a chancellor may refer a question of fact to be tried by a jury; that is: (1) Where a trial by jury of the disputed question of fact in chancery was given as matter of right; and (2) where no such right existed, but the necessity therefore (under the statute then of force) was from the evidence apparent to the chancellor. The decision in Mathews v. Forniss cited the Adams v. Munter Case in support of the conclusion announced. This is persuasive that Judge Stone did not intend to overrule or modify the decision in Adams v. Munter, or else that the two opinions were not thought to be inconsistent. It is true that in Mathews v. Forniss the expression is used: “In their trial, unlike the proceedings in common-law suits proper, no question can be reserved by bill of exceptions for revision in an appellate court. * * * And when an appeal is taken, error is not assigned to any ruling on the trial before the jury.”
It is clear, however, that this language, “for an appellate court,” had reference to the revision, by appeal to' this court, of the verdict of a jury, or of the rulings of the court on such trial at law, without presenting the same for review by the chancellor. Such revisory power was with the chancellor or the court of equity submitting such fact for trial at law. Further considering the two cases, it is noted, that in Adams v. Munter, a bill was filed in the chancery court for the purpose of having set aside a fraudulent judgment, a case in which Adams had no right to a trial by jury under the statute of 1876, and that the chancellor had decreed in conformity with the verdict of the jury, and dismissed the complainant’s bill. On appeal from this decree the complainant assigned as error the interlocutory order of the chancellor submitting the issue of fact to the jury, the incorporation of the verdict of the jury in the decree of the chancellor,
In Mathews v. Forniss, involving the contest of a will, the right to a trial by jury existed as a matter of right, yet, as we have pointed out, there was no timely demand therefor, the necessity for such certification for a trial by jury being apparent to the chancellor, and he did so certify the same. The status thus presented was practically the same as where such right did not exist, but the same was certified to a jury for trial to the end of informing the conscience of the chancellor. The controlling factor in Mathews v. Forniss is shown by the recital (91 Ala. 161, 162, 8 South. 662): “At the term of the court when the submission was ordered, neither party applied for a jury. When the file reached me, the complainant insisted upon an issue before a jury. I do not think, as a matter of right, the complainant can demand a jury now, after being silent as to that on the original submission. But a careful examination of the pleadings and the voluminous testimony convinces me that this is a proper case to be tried by a jury, especially when the application is made by either party before the court is called on to enter upon the investigation of the questions of fact at issue. It is therefore adjudged, ordered, and decreed that an issue be made up between the parties, setting forth clearly the true questions of fact to be tried.’ * * * The chancellor, as we have seen, did not set aside the submission, when he made an order referring the issue to a jury; and roe hold that the submission was [italics interpolated] for the aid of his own judgment or conscience under section 3585 of the Code. We consequently disallow the bill of exceptions (91 Ala. 165, 8 South. 664).”
Judge Stone treated, however, as a controlling factor the fact that the cause was submitted to the chancellor for decree on the merits, so entered of record, and that at such time neither party requested a trial by jury; and that the right to demand a jury had been waived because no such demand therefor had been made before the submission of the cause; and that such submission of the issue of fact to a jury, by the chancellor, while
In Ex parte Colvert, supra, the procedure laid down was for the aggrieved party to have the particulars, wherein he supposes himself injured on the trial at law, certified as the proceedings thereof to the chancery court and make such certificate the basis of a motion for relief before the chancellor. This procedure declared in the Colvert Case was on authority of Adams v. Munter, supra. The Adams Case was on authority of Alexander v. Alexander, 5 Ala. 517, which case in turn rested on the decision of the Lord Chancellor in Barker v. Ray, English Chancery Report, 2 Russell’s Rep. 75. It is true that the Colvert Case was the contest of a will, and the statute thus governing provides that either party, as a mater of right, may demand a trial by jury. There is therefore a difference between the Colvert Case and the instant case. In the former, such trial was a matter of right; in the latter, a matter of discretion. It must be admitted that the expression in Ex parte Colvert, “It would seem * * * that the same rules or procedure must govern every case in which the trial by jury is had of doubtful or controverted issues of fact, arising in a suit in chancery regardless of the question as to whether the chancellor has a discretion as to ordering a jury trial or whether he is without discretion in so ordering it,” was dictum. But it was in accord with the decisions in Adams v. Munter, supra; Alexander v. Alexander, supra, and Barker v. Ray, supra.
It will be well, in adverting to the Barker Case, to say that there an issue of fact was directed and tried, and that Lord Chancellor Eldon presupposed knowledge on the part of the chancellor of the evidence adduced at the jury trial, the Lord Chancellor saying:
“In considering whether, in such a case as this, the verdict ought to be disturbed by a new trial, allow me to say that the*408 court, in granting or refusing new trials, proceeds upon very different principles from those of a court of law. Issues are directed here to satisfy the judge, which judge is supposed, after he is in possession of all that passed upon the trial, to know all that passed here; and, looking at the despositions in the cause, and the proceedings both here and at law, he is to see whether on the whole they do or do not satisfy him. It has been ruled over and over again that, if on the trial of an issue a judge reject evidence which ought to have been received, or receive evidence which ought to have been refused, though in that case a court of law would grant a new trial, yet if this court is satisfied that, if the evidence improperly received had been rejected, or the evidence improperly rejected had been received, the verdict ought not to have been different, it will not grant a new trial merely upon such grounds.”
How can it be said, if the complaining party may not seasonably take or make exceptions on the trial of the issue of fact before the jury, and duly present the same to the chancellor by such authenticated certificate, that the chancellor committed error in the incorporation in his decree of that finding of fact? How else could the chancellor be informed whether on such trial evidence was taken ore tenus pursuant to the statute (Code, § 3202) and pursuant to the decree in this case of submission of said issue for trial to the jury and what the evidence was? How else could this court be informed of “the facts upon which the decision of the chancellor is rested?”—Woodrow v. Hawving, 105 Ala. 240, 16 South. 720; Roy v. O’Neill, 168 Ala. 354, 52 South. 946; Freeman v. Blount, 172 Ala. 655, 55 South. 293; Claflin Co. v. Muscogee Co., 127 Ala. 376, 30 South. 555; Toney v. State, 144 Ala. 87, 40 South. 388, 3 L. R. A. (N. S. 1196, 113 Am. St. Rep. 20, 6 Ann. Cas. 865.
Further analogous cases are those holding that a register’s finding on the oral examination of witnesses is presumed to be correct (Bidwell v. Johnson, 195 Ala. 547, 70 South. 685; Roy v. O’Neill, supra), and that the judgment of the court, where the trial was had without the intervention of a jury, will not be disturbed unless plainly contradictory to the great weight of the evidence.—Hackett v. Cash, 196 Ala. 403, 72 South. 53; Finney v. Studebaker Co., 196 Ala. 422, 72 South. 55; Jackson Lumber Co. v. Trammell, infra, 74 South. 469; Woodrow v. Hawving, supra; Scruggs v. State, 165 Ala. 121, 51 South. 302.
It is insisted that no weight should be given to the decision of the chancellor upon the facts, but that the Supreme Court should weigh the evidence and award justice as to them it seems meet (Code, § 5955; Huntsville Elks Club v. Garrity-Hann Co., 176 Ala. 128, 57 South. 750; Thornton v. Esco, et al., 181 Ala. 241, 61 South. 255; Shows v. Folmar, et al., 133 Ala. 599, 32 South. 495); that the statute requires this court to pass anew upon the facts, even in a case where the trial was had at law on submission of the chancellor, though the evidence adduced at such trial is not shown by the record. We believe it necessarily
The chancellor’s final decree makes plain his difficulty in passing on appellant’s motions and objections to evidence, reciting that the evidence on which the trial at law was had was not certified to him, and that the respondent, appellant, had relied on supporting its motions and objections to the evidénce, “without showing what was the ruling of the lower court” thereon.
Affirmed.