Marcy v. Howard

91 Ala. 133 | Ala. | 1890

STONE, C. J.

The plaintiffs in this suit-, ixi each couxxt of the complaint, claim damages for an alleged trespass guare clausum fregit. They describe thenxselves as heirs of Peter Marcy, deceased. They aver the trespass was committed “on, to-wit, the 1st day of December, 1885, and prior axxd subsequent thei-eto,” and that the laixds oxx which tlxe trespass was committed belonged to plaintiffs. The defendant demurred to the complaint, assigning as a ground that damages for such trespass are personalty, and that the right to sue for them vests ixx the personal x-epresentative, axxd does xxot descexxd to the heir. The record shows no ruling oxx this demurrer. -It was no doxibt overruled, as there was nothing in it. The complaint does not show that the trespass was committed in the life-time of Peter Marcv, the ancestor; and while the plaintiffs aver that they are his heirs, they do not show that they base their right of recovery on that relation. They do not sue as heirs. Such words are treated as mere descriptio personarum. Agee v. Williams, 27 Ala. 644; Crimm v. Crawford, 29 Ala. 623; McCoy v. Watson, 51 Ala. 466.

There was a demurrer by plaintiffs to defendant’s fourth plea, and it is assigned as error that the court overruled that demurrer. The record fails to show any ruling on that demurrer, and hence we can not consider it.—3 Brick. Dig. 78, § 7; Ib. 705, § 82.

The present suit is an action of trespass to lands, and charges the defendant with cutting and removing timber therefrom. The lands, at the time of the alleged trespass, were the property of Beter Marcy, who subsequently died. The suit is by his heirs at law, and seeks to recover damages for cutting and removing the timber. The court charged the jury, in effect, that the heirs could not maintain the action, and there were verdict and judgment for the defendant.

Damage to real estate, or rather the right to recover compensation therefor, is personalty, and does not descend to the heir, but to the personal representative, in countries where the common law prevails.—State, ex rel Nabors, 7 Ala. 459; Jordan v. Abercrombie, 15 Ala. 580. It follows that, in the absence of a showing to the contrary, the right to sue in this case vested, on the death of Beter Marcy, in his personal representative, and not in his heirs.

It is shown in the record before us that Beter Marcy, at the time of his death, was a resident of Louisiana. It is a general principle of law, that personal estate, unlike realty, has no iixed situs, but that it follows its owner, wherever his residence may be. From this unquestioned principle, it is contended, that the devolution of the ownership and title of the claim which is the subject of the present suit, must depend on the law of Louisiana. And it is contended that, under that law, in certain conditions which it is claimed were complied with, the right to bring and maintain this suit, at the death of Beter Marcy, vested in his heirs, the present plaintiffs. The Louisiana statutes were not offered in evidence, and we can not know what their provisions are. Statutes of other States, like the laws of foreign countries, are not within our judicial cognizance, but must be proved.

A certified transcript from the Civil District Court, Parish of Orleans, Louisiana., was offered in evidence, objected to, and ruled out by the court. It was offered alone, unaccompanied by any offer to produce the statutes of that. State, or to make any other explanatory or connecting proof. That trail-script sets forth and exemplifies, with proper certificates, a judgment or decree of the said court, declaring that the plaintiffs in this suit, naming them, “be, and they are hereby, recognized as the sole and only children and heirs of Peter Marcy, their deceased father, and that as such they be put in possession of all the property and effects left by him at his demise, in,the proportion of one fifth part to each.” This order purports to have been based on a petition of the said heirs, “to be recognized and put in possession.” The proceeding was no doubt ex-parte, for the order recites that the petition was filed one day, and the order was granted the next. The transcript fails to show that any person or persons were named as respondents, or defendants. This transcript was the only evidence offered tending to show plaintiffs’ right to maintain this action.

We need not, and do not, declare what would be our ruling, if the statutes of Louisiana had been put in evidence, and had shown that, under an order such as that stated above, the children or heirs of a decedent succeed to the title and ownership of personal property, without the intervention of a personal representative. Whether such statutory regulation, if shown to exist, would or could have any extra-territorial operation, the condition of this record does not require us to determine. It is very certain that, in the absence of proof, we can not presume or assume that the State of Louisiana has a statutory system so entirely variant from our own. And the certified ex-parte order offered in evidence can not, in the slightest degree, supply the absence of statutory authorization. Plaintiffs showed no right whatever to maintain the present suit.

Here this opinion might close; for plaintiffs failing entirely to show any right to recover, any other ruling of the court could not possibly do them any injury. But the Circuit Court did not err in any of its rulings on the admissibility of testimony. Nor should the court have allowed the amendment offered. An administrator ad litem is not a proper party to maintain such a suit as this; and if he were, he could not be joined with the heirs as plaintiffs. — Code of 1886, § 2283.

Affirmed.