75 So. 355 | Ala. | 1917
In the comparatively recent decision of Bradford v. Sneed,
"Where no statute controls, the certainty of a verdict may be established by a reference in it to monuments on the ground, to recorded deeds, or diagrams filed of record, or to warrants of survey, or to an 'old hedgerow.' "
The Carter Case recognizes the force and soundness of this doctrine of the Carlisle Case. It is hardly necessary to repeat that a boundary or boundaries of land intended to be affected by a judgment may be efficiently defined by monuments or existing things within the rule recognized in Bennet v. Morris and Carlisle v. Killebrew. But when the judicial purpose is to describe a part only of the larger area, an area that is not definable by reference to it as a known entity, the verdict or judgment or the pleading to which the judgment or verdict refers must contain elements of description which do not leave the finding of the boundaries of the lesser area to the discretion or conclusion of the officer executing the writ. Such data may be afforded by reference in the judgment to monuments or existing things (Carlisle v. Killebrew), and, when set forth or referred to in the verdict or judgment, will be sufficient and serve the purpose of excluding the commission to the officer of any discretion in the premises.
This action was commenced in a justice's court by appellee against appellant and another. The complaint appears to have been intended to state a case of unlawful detainer. Its sufficiency in that regard was not tested either in the justice's court or in the circuit court, to which it was removed on an appeal by the defendant from a judgment in favor of the plaintiff. Where the sufficiency is not appropriately questioned below, all intendments are resolved in favor of the pleading to support the judgment. Werten v. Koosa,
"No judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contain a substantial cause of action."
The report of the appeal will contain that part of the complaint describing the land in question.
In the justice's court disclaimer of possession was entered of all the land sued for (about 155 acres) "except four acres on which R. A. Lessley homestead is located." As stated, no new complaint was filed in the circuit court. The judgment entry recites that issue was joined, and that:
"Thereupon came a jury * * * who * * * say on their oaths, 'We the jury find for the plaintiff the four acres of land and house lying north of the Corbin road, known as the R. A. Lessley Estate.' "
The judgment awarded to the plaintiff the possession of the following land:
"Four acres of land and house lying north of the Corbin road known as the R. A. Lessley estate where the R. A. Lessley homestead is located, situated in the county of Coosa and state of Alabama in section 2, township 23, of range 17, and that writ of possession and execution issue."
Unless the reference to the R. A. Lessley homestead will serve to efficiently describe the four acres in question, the judgment would be deficient (on appeal) in describing the area affected. According to the doctrine of the Carlisle and Carter Cases, it cannot be held that the judgment is void on its face. It may be that the "R. A. Lessley homestead or estate" is a well-defined, distinct, commonly known entity in that community, as much so, though doubtless differing in degree, as are some of the noted places of residence in other communities in the state. In Bradford v. Sneed, as has been already indicated, there was no statement of the area affected by the verdict or judgment, and the limit of the land sued for and recovered by the plaintiff was defined only by reference to the defendant's possession, a condition that was properly held to be wholly uncertain in its effect. If the homestead referred to as containing four acres, lying north of the Corbin road, on which there was a house, is a distinct entity, the limits of which are so defined as to be open to the sheriff's view, that officer will encounter no difficulty and will be called upon to employ no discretion in executing the writ of possession ordered to issue by the circuit court.
The judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur. *46