Louisville & Nashville Railroad v. Hall, 131 Ala. 161

131 Ala. 161 | Ala. | 1901

Lead Opinion

TYSON, J.

This was an action of trespass quare clausum fregit. The complaint contains three counts. The first relies for a recovery upon plaintiff’s possession of the locus in quo; the second, upon title, and the third, upon title and' possession.

The gist of this action is the injury done to the possession ; and of consequence, to support it, the plaintiff must show that, as to the defendants, he had at the time of the alleged injury, rightful possession, actual or constructive. Of course if he has title to the property alleged to have been trespassed upon, he lias constructive possession of it, unless he has parted with the pos: session conferring on another the exclusive right of enjoyment against whom he has not the right of immediate possession. — Davis v. Young, 20 Ala. 151; Boswell & Wooley v. Carlisle, Jones & Co., 70 Ala. 244; Dunlap v. Steele, 80 Ala. 424; Fields v. Williams, 91 Ala. 502. As against a stranger, actual possession will support the action, without regard to whether plaintiff had title at the time of the alleged trespass. — Duncan v. Petts, 5 Stew. & Port. 82; Langford v. Green, 62 Ala. 314. But as against one having title to the property alleged to have been trespassed upon and having been wrongfully denied possession, in 26 Am. & Eng.Ency. Law (1st ed.), 600, it is said: “One having" title to property and wrongfully denied possession, can enter without being guilty of trespass; so a tenant, mortgagor or other person, without title, may have a present right of possession which will justify his entry or enable Mm, if in possession, to maintain trespass for the wrongful entry of another.” See in support of this proposition note 1 on page 600 and note 1 on page 601 of the same volume where the cases are collated. This principle was recognized in Herndon v. Bartlett, 4 Port. 481, where the court held that the plea of Uberwn tenementum was an answer to a complaint in trespass quare clausum fregit alleging entry with force and arms and was proper matter for special plea. See also 26 Am. & Eng. Ency. Law (1st ed.), 632-634. In view of the conclusion to strike the bill of exceptions, the only matter before us for consideration is whether the joint plea of all the defendants designated as “A” was subject to the demurrer interposed to it. That plea refers to and makes a part of it, plea “2” of the Mobile and Montgomery Railway Company, one of the defendants in the cause. In the absence of all objection to this mode of pleading, we must hold that the effect of this reference, etc., to plea 2' was to incorporate the allegations of fact in that plea into the plea under consideration and to make those allegations as much a part of this plea as if they had beeu actually written in the body of it. With the plea thus framed, it contains a denial of plaintiff’s1 possession and title to the locus in quo and an allegation of liberum tenementtm in the Mobile and Montgomery Railway Company. It is clear that it was not subject to the demurrer interposed to it, whatever may be its defects in other respects. For the error committed in sustaining the demurrer, the judgment must be reversed.

The bill of exceptions must be stricken on the authority of Gassenheimer Paper Co. v. Marietta Paper Co., 127 Ala. 183, on account of being in violation of Rule 33 of circuit and inferior court practice (Code, p. 1201). The frame of the bill of exceptions in this case is identical with the one in the Gassenheimer Paper Co. case. Here, as there, it “contains a statement of everything that was done on the trial, and sets forth every word uttered by everybody — witnesses, attorneys, judge, etc., — while it ivas in progress. * * * No effort is made to present a statement of the testimony or its tendencies, as the rule requires, but it is given verbatim as it comes from the mouths of witnesses. Not only are the objections to the testimony stated, but the arguments of counsel upon the objections are set- forth at length and in full; and not only are shown the rulings of the court, but every remarle of the presiding judge is set forth with care and particularity.” It also sets forth rulings against the plaintiff and other defendants in whose favor there ivas a verdict and judgment, who of course do not appeal, and the grounds upon which those rulings were made and the exceptions thereto, along with the suggestions, remarks and arguments of counsel thereon.

But it is insisted that all this was necessary because the affirmative charge was given for the plaintiff and refused to these appellants. This contention is based upon a mistaken interpretation of the provision of the rule to the effect that bills of exceptions may contain a statement of testimony in extenso, when the affirmative charge has been asked in good faith. — Woodward Iron Co. v. Herndon, 130 Ala. 364. It may be, as was said in the case just cited, that “occasionally it may be necessary, in order to convey some shade of meaning which cannot be stated aptly, or where there is doubt as to the meaning, to set forth the question and the answer; but it is not conceived that this necessity can often arise.” Here, it may be well to call attention to the difference between the bill of exceptions in the Woodward Iron Co. case, which this court did not strike, but imposed the cost of it on the appellant, and the one under consideration. In that case, the bill only contained the questions to and answers of the witnesses— no speeches, remarks or suggestions of attorneys, remarks of judge, objections and exceptions of successful party, etc. It must be understood, however, that the considerations which were allowed to obtain in the Woodward Iron Co. case to the end of saving the bill of exceptions from being 'stricken, will, not be indulged in another where the bill is framed as that one was and prepared after tlie announcement of the opinion in that case.

Again it is contended that appellants out of deference to the wishes of the presiding judge prepared the hill of exceptions as it appears in this record. The facts upon which this contention is based, are shown by an affidavit of the judge. But his conception of what the bill should contain, doubtless grew out of a misconstruction of the rule and his requirement that the bill he constructed in violation of it is no excuse. Had the bill been properly framed and had he refused to sign it on presentation, it could have been established in this court.

The writer of this opinion, however, thinks that the striking of the bill of exceptions is too severe a penalty to impose, in view of the nature of the case rendering it exceedingly difficult to state in an orderly manner all the testimony or its tendencies; and in view of the fact that the affirmative charge was given for the plaintiff and refused to these appellants. Furthermore, he is induced to this conclusion by the fact that this cause was submitted before the announcement of the opinion in the Gassenheimer Paper Co. case; and while he concedes that this bill was a more flagrant infraction of the rule than was the one. in the Woodward Iron Co. case, still in view of the considerations which were allowed to obtain in that case, he thinks under the circumstances, they should be allowed to prevail here. A sufficient punishment, in his opinion, would be an imposition of costs.

Reversed and remanded. Costs of bill of exceptions to be adjudged against appellants.

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Rehearing

On Application for Rehearing.

The other members of the court while still adhering to their position in respect to striking the bill of exception's, however, recede’ from their conclusion as to a reversal of the judgment in the cause. While conceding there was error in the ruling® of the trial court in sustaining the demurrer to the special plea, they now hold, that it was error without injury. They predicate their conclusion in this respect upon the proposition that the facts alleged in the plea could have been introduced in evidence, not that they were, under the plea' of the general issue — a. proposition of law which is not entiiely flee from doubt. They rely, in support of their conclusion upon Powell v. Asten, 36 Ala. 140; Rogers v. Brazeale, 34 Ala. 512; Stein v. Ashby, 24 Ala. 521 and Owings v. Binford, 80 Ala. 421. It must be conceded that the two cases first named support their holding. The opinion in each of them are by the same judge and show that he gave but little consideration to the question. Indeed the cases lie cites to support his views do not do so. In each of them the facts stated in the plea to which a demurrer was sustained were after-wards received in evidence upon the trial. But the last two do not, except in a dictum■ which, of 'course, is not authority. The report of these cases show that the defendant in each of them actually had the benefit of all evidence under other pleas to which he would have been entitled, had the pleas to which demurrers were sustained, remained in the record. There was, therefore, no necessity for this court in reviewing those cases to say more than that the error was cured by allowing the defendant, to introduce the facts alleged in his pleas in evidence under another plea — a well recognized principle which has often been invoked and applied by this court. The writer’s position is, error having confessedly been shown in this case, the fact must affirmatively appear from the record that defendants under their plea of the general issue, had the full benefit of the facts alleged in their special plea to which a demurrer was improperly sustained. And this- fact not appearing from the record, the bill of exceptions having been stricken, the presumption of injury must prevail. This principle was applied and enforced in the following cases, in which precisely the point here under consideration Avas involved: Lambie v. The Sloss Iron & Steel Co., 118 Ala. 427; Mitchell v. Moore, 73 Ala. 542; Graham v. Woodall, 86 Ala. 313; Rice v. Drennen, 75 Ala. 335; Rigby v. Norwood, 34 Ala. 129; Fails v. Weissinger, 11 Ala. 801; Pinkston v. Green, 9 Ala. 19.

In Fails v. Weissinger, supra, it was said: “It is, hcAvever, contended for defendant- in error, that although the demurrer to tlie pleas should not have been sustained, j^et as the defendants below might have proved the same fact which they set up under the other pleas, they have not been prejudiced by the judgment on demurrer; and, therefore, cannot complain of the decision against them. All the pleas were affirmative, and it devolved upon defendants after the plaintiff had produced the bond and shown a breach, to sustain a defense by proof. Now although it may be that the plea of performance would have tolerated the admission of all the facts alleged in the several pleas; yet we must intend under the circumstances of the case that the demurrers were sustained, “because it was supposed that the pleas adjudged bad, did not present an available defense; that the court would not have admitted evidence of the fact they alleged. When a demurrer to a. plea has been improperly sustained, if it appears tjjiat the defendant has had the benefit he could have derived from it, upon the trial of issues on other equivalent pleas, he cannot insist upon the error; as no real injury was done him.”

In Mitcham v. Moore, supra, Brickell, C. J., speaking for the court, said: “It is insisted for the appellee, that although the demurrers to the special pleas were sustained erroneously, the error is without injury, as the appellants could have had the benefit of the facts stated in them, under the general issue upon which the trial was had. The rule is quite general, that if a demurrer to a special plea is erroneously sustained, the error is without injury and not a cause of reversal, if it appears that the defendant has ‘had, under the general issue, the full benefit which could have’been'derived from the special plea. But that fact must affirmatively appear from the record, and if it does not, the presumption of injury, arising from error 'dearly shown, must prevail. * * * The fact does not now appear; the bill of exceptions states all the evidence and none ■was given of the facts stated in these pleas, nor is it probable that such evidence would have been admitted, if offered.”

In Lambie v. The Sloss Iron & Steel Co., supra, the same learned judge used this language: “When -a démiuTer is erroneously sustained to a special count, the presumption of injury arising from error must- prevail, though it he true the plaintiff under the common counts could have given evidence of all matters, which would have been available under the special count, unless it appears that such evidence was introduced. The fact of the introduction of such evidence, does not affirmatively appear, nor is it probable that it would have been received if offered.”

In Rice v. Drennen, supra, Sommerville, J., speaking, slid: “We are unable to perceive upon what ground the first plea was adjudged bad. * * * The court erred in pronouncing it bad, in whatever form the objection to it may have been presented. It is contended that this action of the court must be regarded as error without injury as the case seems afterwards to have been tried upon its general merits. It does not appeal’, however, that the contestants offered any evidence in the cause whatever and we cannot know that they were not deterred from doing so by this erroneous ruling of the court. The]7 had the right to suppose that, inasmuch as the plea had been pronounced bad, all evidence offered in support of it would have been excluded by the court on objection taken to it by the petitioner.”

Excerpts from other cases cited to support my contention might be quoted, but these will suffice to show that no presumption can be indulged to overcome the presumption of injury after error is shown. And unless we indulge the presumption that the trial court would stultify itself by receiving evidence to establish a state of facts, as a defense, after having ruled that the same state of facts alleged in a plea constituted no defense, we are forced logically to the conclusion which the writer contends for is the law. And this cannot be done unless we abrogate the rule laid down in the cases cited above and quoted from, which has obtained in this State since the establishment of this court. Before concluding I will cite the case of Troy Fertilizer Co. v. The State of Alabama, decided at present term, which fully sustains my contention. In that case, notwithstanding the facts stated in the special pleas, stricken on motion, were received in evidence, this court reversed the judgment, because of the. error in striking them, although the facts alleged in them were confessedly no defense, to the action. It- is true, it is said that the facts stated in the pleas could not have been introduced under the general issue, but the record showed that they were received in evidence without objection. The principle undelying the opinion is, error having been shown, it could not be said that no injury resulted to the defendant — that, it- had all the benefit from the evidence, that it would have been entitled to had the pleas not been stricken. I was, at first., inclined to think that the opinion was wrong, but I have become convinced of its correctness. Although the point seems technical, yet, to hold otherwise would be to emasculate the statute requiring special demurrers and to infringe upon the rule which I am so strenuously insisting upon upholding in this case.