122 So. 419 | Ala. | 1929
The record that appellant's bill to quiet title against the two respondents was filed August 12, 1927. There was a disclaimer of title by on respondent on August 22, 1927, and demurrers by the remaining respondent on said date. Answer and cross-bill was filed on January 17, 1928; demurrer on February 22d; note of testimony and request for submission and due application to the clerk therefor by the respondent and complainant in the cross-bill on May 5; and on August 5, 1928, there was "Note on Testimony" by the deputy clerk and register.
In this "Note of Testimony" it is duly recited:
"This cause is submitted in behalf of complainant and cross-respondent, upon the original bill of complaint, demurrer to cross bill, and decree overruling demurrers to original bill, and depositions of Emma Pope, Sam Johnson, Azzie Streeter, and Jesse Pope, together with exhibits thereto attached, and in behalf of respondent, and cross-complainant, upon the original answer and cross bill of respondent M.E. Allinder and disclaimer of E.M. Allinder, demurrers to original bill and decree overruling demurrers, and depositions of M.E. Allinder, Amy Smith, George Smith, J.W. Walters and E.M. Allinder and exhibits thereto attached."
There is an agreement by the respective counsel that the testimony of the witnesses be taken by "oral depositions" before the named commissioner at the place indicated, and the agreement extended to the manner of objection and reservation of exceptions. The statute did this. Acts of 1923, p. 631; Dillard v. Propst,
The provision of the statute (section 6639, Code) is that, when any cause "be at issue and ready for submission, the court shall receive the submission whenever it shall be presented to him." Anderson v. Steiner,
The record shows the organization of the court, that the things done in said cause were "at a regular term of the circuit court," and that the cause was regularly submitted and heard, and decree overruling demurrer was on August 31, 1927, and that on the merits was entered on September 5, 1928. Thus these orders and decrees were in term time when the court was open for Thrower,
There was no arbitrary or unreasonable action of the court in taking the submission for the cause after ample time for preparation of the cause for final submission.
The assignment of error, that the court erred in "overruling demurrer" to the cross-bill of respondent, is not well taken. The record fails to show that the court ever had the same submitted for decision or urged for attention, and did not, in fact, enter an order overruling appellant's demurrer to the cross-bill. Since appellant's demurrer was not presented, urged, or submitted, such failure of insistence upon the same was a waiver held to apply to the demurrer not passed upon by the trial court. *441
The ground of demurrer, that the original bill did not rest upon a claim of ownership and the assertion thereof accompanying in support of her possession, presents no question here. The statute declares what she should have averred. Section 9906, Code; Reeder v. Cox (Ala. Sup.)
It is true, the evidence fixes the beginning of appellant's possession in the latter part, or in November, 1917, and the bill was filed within 10 years thereafter, or on August 12, 1927, and the answer and cross-bill filed on August 22d of the same year sets up her title and ownership of the land through and by conveyance from the surviving heirs of Peter and Ella White, the alleged common source of the title. When the evidence is carefully considered, the original complainants were mere tenants at will of the White heirs, or next of kin. Collins v. Johnson,
The bill was not framed with the view of obtaining an award for the improvements made by appellant upon the land and shown to be a case where same were allowed. Pinckard v. Pinckard's Heirs,
The judgment is corrected by the elimination of the item of $78 allowed as rent, and as corrected is affirmed in so far as it settles the title. The costs of the appeal in this court are taxed against the appellee.
The decree of the circuit court is corrected and affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.
