Mobley v. TurnerMobley v. Turner
This appeal involves a boundary line dispute between Eugene Mobley, appellant-defendant, and Sue Turner, appellee-plaintiff. No record was made of the court proceеdings. Pursuant to
“This cause came on to be heard at a regular term of the Circuit Court of Monroe County, Alabama, Honorable R.E.L. Key, Circuit Judge, prеsiding. Both parties were present and were represented by counsel, as stated in Appellant‘s Statement of Evidence.
“Testimony taken orally by the Court was to the effect that the parties were co-terminous owners of real property in Monroe County, Alabama, and that the boundary linе between the lands of the respective parties was disputed.
“At that time, the parties with the knowledge and consent of their respective counsel and with the knowledge and consent of the Judgе, agreed that Daniel R. Andress, Jr., a registered land surveyor, would be employed to survey the disputed boundary line and to establish a line with monuments thereto. Both parties agreed that the survey, to be done by Andrеss, would be binding on them and that the cause would be disposed of in that fashion.
“Andress later surveyed the prеmises in accordance with an order of the Court, pursuant to the parties’ agreement, and mаrked the line he established and reported his findings to the Court.”
On review, we will accept the apрroved statement of the evidence as true. U.S. v. Chesapeake and Ohio Railway Co., 4 Cir., 281 F.2d 698 (1960); Hawkins v. Missouri Pac. R. Co., 8 Cir., 188 F.2d 348 (1951).
The error complained of by appellant is that the trial judge did not follow the procedure outlined by
According to the aрproved statement of the evidence, both parties agreed in open court that a survey would be made and that it would be binding. In Carlisle v. McCleskey, 264 Ala. 436, 87 So.2d 831 (1956), the parties similarly agreed in open court to end their boundary line dispute by having a survey made and by being bound by that survey. The court held the survey was not made via
“. . . Here the appointment of the surveyor, his duties and authоrity were by virtue of the agreement, more in the nature of an arbitration under
sections 829 to 844, Title 7, Code , than a mere survey undersections 5 to 12, Title 47 . True,section 831, Title 7, Code , requires the agreement to be in writing, but that is satisfied when it is made in open court. Snodgrass v. Armbrester, 90 Ala. 493, 7 So. 840; Samuels v. Scott, 212 Ala. 679, 103 So. 848; Prestwood v. Watson, 111 Ala. 604, 20 So. 600. See Equity Rule 71, Code 1940, tit. 7, Appendix.“An award made under such an agreement has the properties of a judgment, and if it responds to the agreement of submission, Tabor v. Craft, 217 Ala. 276, 116 So. 132; 6 C.J.S. Arbitration and Award § 80, p. 219, it is subject to attack only for fraud, partially or corruption.
Section 842, Title 7, Code .” Id. at 439, 87 So.2d at 834.
We believe Carlisle controls this case. However, even if
“Even admitting the irregularity of the decree for failing to set a date for heаring objections and to order the parties to show cause why the survey should not be made, the question is whether such failure here constitutes prejudicial error to reverse. We think that the propеr remedy for testing the decree of the court appointing the surveyor [an interlocutory order and subject to alteration at any time before a final decree under this Court‘s decisions in Stansell v. Tharp, 245 Ala. 270, 16 So.2d 857 (1944), and Tanner v. Dobbins, 251 Ala. 392, 37 So.2d 520 (1948)] would hаve been to file a motion in court to set it aside and allow objections to be filed. The rulings on suсh motion, if adverse, would be subject to review in an appropriate manner. See State v. Woodroof, 253 Ala. 620, 46 So.2d 553 (1950), and cases there cited.
. . . . .
“We arе not to be understood as condoning the appointment of a surveyor without affording notice and an opportunity to object as provided for by statute. Objection to such irregularities should not be made for the first time on appeal.” McCullar v. Conner, 287 Ala. 455, 461, 252 So.2d 422, 427 (1971).
The judgment is affirmed.
AFFIRMED.
TORBERT, C.J., and BLOODWORTH, JONES and EMBRY, JJ., concur.
Notes
“§ 5. Survey may be directed. — Whenever in any suit pending in the circuit court in equity it is pertinent and material to the determination of the issue or issues therein or to the proper entering of a description in the decree therein, to establish or fix a disputed land line or boundaries between coterminous landowners, or to locate the position of a line of thе government survey, or to locate a landmarker or other object, the court may, as hereinafter provided, direct a competent surveyor or surveyors to make a survey for the purрose of fixing or establishing the disputed land line or boundaries between coterminous landowners or оf locating the position of a line of the government survey or of locating a landmarker or оther object.”
“§ 6. Decree that survey shall be made. — If the court is of the opinion that such survey should be made it shall enter a decree stating the reasons why, in its opinion, such survey should be made and fixing a day on which to hear objections thereof and directing the parties to said suit to show cause, if any, why such survey should not be made as proposed in sai