Allison v. Little

• Decision Date: 07 January 1889
• Citation: 5 So. 221,85 Ala. 512
• Parties: ALLISON v. LITTLE ET AL.
• Court: Alabama Supreme Court

5 So. 221

85 Ala. 512

ALLISON v. LITTLE ET AL.

Supreme Court of Alabama

January 7, 1889

Appeal from circuit, Lawrence county; H. C. SPEAKE, Judge.

This action was by E. S. Little and others, as trustees of Mount Pleasant Baptist Church, against one Allison, to recover the statutory penalty for entering upon lands belonging to the said church, and willfully and knowingly destroying a number of trees on said lands. The defendant pleaded res adjudicata, to which plea the plaintiff demurred, on the ground that the said plea showed that the former action which is sought to be set up in bar of a recovery in this present suit, was a common-law action of trespass, while this is an action for the recovery of a statutory penalty; that the said plea did not show that there were the same parties plaintiffs to the two actions; and that the said plea showed that the cause of action in the two suits was not the same. The court sustained this demurrer, and defendant excepted. The defendant then pleaded the general issue; that the plaintiffs were not in possession of the lands at the time the trespass was alleged to have been committed; that the plaintiffs had no interest in the lands at the time of the alleged trespass; and that at the time of the cutting the defendant thought that he had a right to cut the said trees and that he did so without the intention of committing a trespass. Upon the trial the plaintiffs introduced in evidence a duly certified copy from the records of Lawrence county, of a deed from Amos Jarmon to certain named trustees conveying to the said trustees, for the use and benefit of the Mount Pleasant Church, the lands upon which the trees alleged to have been cut by the defendant were situated. This deed bore the date of 21st day of February, 1831. The defendant objected to the introduction of this deed in evidence, on the ground that the plaintiffs had not accounted for the original, or accounted for its loss; and on the further ground that the original was not properly proved by the subscribing witnesses, who were not called, nor their absence accounted for. The court allowed the deed to be read in evidence, and defendant objected. There was evidence that the defendant had entered upon the lands belonging to the said church, and had knowingly cut a certain number of trees therefrom. Plaintiffs then offered in evidence a certified transcript from the record of the Mount Pleasant Church showing the appointment of a certain committee to see defendant, and ask of him his authority for cutting the said trees, and to make a compromise with him. Defendant objected to the introduction of this copy of the church proceedings. The court allowed the copy to be introduced, and defendant excepted. Plaintiffs then offered a duly-certified copy of the proceedings of Mount Pleasant Church in appointing plaintiffs as trustees of the said church. Defendant objected, on the ground that it was not shown that said church had any authority to appoint said trustees, and because the said evidence was illegal and irrelevant. The court allowed the said copy to be introduced in evidence; whereupon defendant excepted. Plaintiffs offered in evidence a duly-certified transcript from the record of the chancery court of Lawrence county, showing the appointment by the register of the plaintiffs as trustees for the said church. The petition in the said proceedings before the register for the appointment of the plaintiffs as trustees was made by E. S. Little, one of the appellees, and stated that he, the petitioner, was a member of the said Mount Pleasant Church. The defendant objected to the admission in evidence of the said transcript on the grounds that the petition failed to show that the petitioner, Little, was a party in interest; "because the petition fails to allege or show what parties are interested in said property; because said petition fails to make any parties in interest defendants thereto; because the said proceedings fail to show that any party in interest was given notice thereof, or was brought into court to answer the same; because the said proceedings fail to show any jurisdiction in the register in chancery to appoint said parties therein named as trustees." The court admitted the transcript in evidence, and defendant excepted. The testimony on the part of the defendant showed that defendant cut the trees on the request of one Letsinger and one Walker; that these persons, Letsinger and Walker, had some of their family buried on the lands; and that the defendant with their consent, or at their request, had cut some of the trees from off of the land in controversy. The defendant testified that all the trees that he had cut had been cut at the request of the said Letsinger and Walker, who, witness believed, were authorized to get him to do it, and that he had had the trees cut in good faith. Plaintiff then moved the court to exclude from the jury the statement of the witness that he had cut the trees in good faith, which motion the court granted; whereupon the defendant duly excepted. Judgment for plaintiffs, and defendant appeals.

James Jackson, for appellant.

Kirk & Almon, for appellees.

SOMERVILLE J.

This action is for the penalty prescribed by section 3551 of the Code of 1876 for willfully and knowingly cutting down and destroying trees on another's land without the consent of the owner. Code 1886, § 3296. The plaintiffs in the action are trustees of a church or religious organization to whom the land belonged, and the act of damage, which is the ground of the suit, was committed before the appointment of the plaintiffs as trustees of the property, while there was an existing vacancy in the trust by reason of the death of their predecessors.

1. A plea of former recovery, or res adjudicata, is interposed, to which a demurrer was sustained, as we think properly. This plea sets up in due form the fact that one Stanly, as deacon of the church, had, prior to the present suit, brought an action of trespass quare clausum fregit against the defendant for the same act of trespass, and had recovered one cent damages therefor, with costs. The defect about this plea is that the party plaintiff in that suit and the party plaintiff in this suit are not the same. To make the plea of former recovery good, the parties to both actions must be the same, or representatives of the same, parties litigant. Identity of person is just as essential as identity of subject-matter or of the cause of action. The gist of...