64 So. 85 | Ala. | 1913
The bill of exceptions in this case contains the following: “S. H. Gillis was next introduced as a witness for the plaintiff and testified in substance as follows: ‘I was present at the trial of this case the last time it was tried in the circuit court. I remember Mr. Dock Jordan who testified in this case.’ Question: ‘Have you read what that record there (points to the old bill of exceptions) states as to his testimony? Answer: ‘I have, and I recall substantially what Mr. Jordan testified to on the trial. That record sets out substantially what he said on that trial; what is recorded there in that bill of exceptions.’ It was admitted that this Mr. Dock Jordan was dead. Plaintiff then offered to introduce this testimony of said Dock Jordan on the former trial of this cause as set out in said bill of exceptions at the spring term, 1907, which testimony of said Dock Jordan is in words and figures as follows: “Knew Morgan H. Riley, deceased', in his lifetime; knew where he lived and knew the land in question. Morgan H. Riley died in 1856; was in possession of the land at the time of his death, having-gone into possession of the land in 1853. A portion of the Riley old farm was on the land in question. I do not know who went into possession of the land in question after the death of Morgan H. Riley; it did not join the Morgan H. Riley homestead. Have seen W. J. Riley on the land, and saw him hauling corn across it, but
We direct attention to the fact that the above witness testified positively that he recalled substantially what the deceased witness Jordan testified to on the former trial, and that the “record sets out substantially Avhat he said on that trial.” In other Avords, the witness, from his own unaided recollection, testified that the record was, in substance, the testimony of the deceased witness on the former trial. This being true, the witness Gillis had the right to use the memorandum for the purpose of refreshing his recollection as to the testimony of the witness Jordan given on the former trial. “That the paper was not written by the Avitness himself is no objection.” — 1 Greenleaf on Evidence (16th Ed.) p. 543, § 439c. “Again, it is equally immaterial that the paper was not made at or about the time of the event; for it is not used as a record of the past memory (as is the case in section 439b), and its poAver to stimulate and revive the memory by the allusions Avhich it contains must be precisely the same Avhether it was made at the time or not.”- — -1 Greenleaf on Ev. (16th Ed.) p. 543, § 439c.
The above rules, however, did not render the memorandum itself admissible as evidence unless called
The leading case in this state upon the subject now under discussion, is the above-cited case of Aoklen v. Hickman. The rules announced in that case have been by this court frequently reaffirmed, and in the above case of Birmingham Railway Light & Power Co. v. Seaborn the language used by this court in said case of Aoklen v. Hickman was quoted with approval.
In the case of Torrey v. Burney, 113 Ala. 496, 21 South. 348, this court used language which is at least in apparent conflict with the rule announced in the above case of Aoklen v. Hiolcman, for in that case this court said, under circumstances somewhat similar to the circumstances in the instant case, that “We think the rule fully complied with and that both the memorandum and the testimony were competent’.’ The conflict between the cases, however, is not so much an actual as an apparent conflict. In the case of Torrey v. Burney, supra, the witness was allowed to use the memorandum and to read from it. The memorandum was not itself introduced in evidence, and this court simply held that the writing was competent as a memorandum.
We have been led to make the above observations for the purpose of giving emphasis to our opinion that in this state the rules declared in Acklen v. Hickman, su
As there was much testimony in the case tending to show that the possession of the plaintiff and those through whom she claims to have derived color of title to the land was not such a possession as in law amounts to actual adverse possession of the land, the plaintiff was not entitled to the affirmative charge in her favor either upon the theory that her evidence established; beyond dispute, her title to the land acquired through adverse possession of the land under color of title, or upon the theory that the evidence, without dispute, showed that the plaintiff was in the adverse possession of the land under color of title, and, while in such possession, was ousted by the defendant, also claiming the land under color of title. This is certainly the effect of the decision of this court upon the last appeal. — Fletcher v. Riley, 169 Ala. 433, 53 South. 816.
Affirmed.