Webb v. Reynolds

139 Ala. 398 | Ala. | 1903

TYSON, J.

At the last term of this court the paper in the record purporting to he a hill of exceptions, on motion, was stricken, and a motion to establish it as a bill of exceptions was denied. Those assignments of error predicated upon exceptions taken upon the trial must, therefore be disregarded. There are other assignments which question the regularity of the judgment appealed from. As to these the appellants are entitled to, have them reviewed.

The action is the statutory one of ejectment against W. M. Webb, Mrs. W. 51. Webb and J. A. McElrath. The Webbs interposed joint jileas of not guilty and of the statute of limitations. McElrath filed a plea disclaiming possession of the land at the time of its filing and at the commencement of the suit. The judgment entry shows that issue was joined only on the plea of not guilty. It is silent as to the disposition made of the jilea of the statute of limitations, or of the plea of disclaimer interposed by McElrath. It is, however, of no moment as to what became of the plea of the statute of limitations since that matter of defense was properly within the issue upon which the cause was tried. — McClendon v. Equitable Mortgage Co., 122 Ala. 390, and cases there cited.

Responding to the issue presented for their consideration, the jury rendered a verdict in this language “We the jury find the issue for plaintiff for the land sued for against W. M. Webb and Mrs. W. M. Webb, and assess the damages for rent at thirty dollars.”

It is objected that the verdict is defective in two respects; first, in that it does not describe the land, and second, in the use of the words “for rent,” There is clearly no merit in either of these objections. The description of the land sued for is sufficiently described in the complaint, and by referring the yerdict to the complaint, as may properly be done, for a description of the land, it is made entirely certain as to what land the jury found the plaintiff entitled to recover. The words "for rent” may be treated as surplusage, if it be conceded, as is contended, that the word “rent” as here used is not synonymous with “use and occupation.” Neither the one or the other was essential to the verdict. The legal effect of the verdict is to to find the issue in favor of the plaintiff as against the Webbs, and to assess his damages at thirty dollars. — Lassiter v. Thompson, 85 Ala. 223; Toulmin v. Lessesne, 2 Ala. 559. Upon the verdict a judgment was rendered by the court in favor of the plaintiff for the land sued for, describing it, and for the damages assessed and also for the costs of the suit against the two Webbs. No mention is made in the judgments, as we have said, of the plea of McElrath, and nothing is adjudged for or against him.

On this state of the record, the plaintiff must be held to have elected not to have taken issue upon this plea, and to have confessed it. — § 1533 of Code. This being true McElrath was entitled to his costs as against the plaintiff; the truth of his plea not being controverted, and there being no judgment against him upon' it. — McQueen v. Lampley, 74 Ala. 408. For this irregularity, it is insisted, that the judment should' be reversed instead of corrected. In this we cannot concur. The case of Neff v. Edwards, 81 Ala. 246, is decisive of this contention adversely to appellants.

The attempt to differentiate that case from this one on the point under consideration is based upon the proposition that in that one there was an Affirmative finding by the jury in favor of the defendant for whose benefit the correction as to costs was made, while in this one McElrath is not mentioned in the verdict at all. This, we apprehend, is of no consequence. As said above, no issue having been taken upon bis plea, the matter of defense involved in it was not presented for the consideration of the jury. It was not, therefore, within their province to find either for or against hint. The plaintiff having elected to admit the truth of the plea by failing to take issue upon it, McEIrath’s right to his costs as against him followed as a matter of course.

’ The judgment of the court below will be corrected so as to adjudge the defendant McElrath to be entitled to his costs as against the plaintiff, at appellant’s cost and as thus corrected will be affirmed.