Beasley v. Beasley
| Decision Date | 31 January 1952 |
| Docket Number | 4 Div. 670 |
| Citation | 57 So.2d 69,256 Ala. 647 |
| Parties | BEASLEY et al. v. BEASLEY. |
| Court | Alabama Supreme Court |
J. Hubert Farmer, Dothan, for appellants.
Chas. O. Stokes, Ozark, for appellee.
Appellant in this case seeks to review and revise a judgment of the Probate Court of Dale County, wherein it was determined that the lands of a decedent, who was a resident of Dale County, Alabama, did not exceed in value $2,000 or in area one hundred and sixty acres, and which therefore confirmed a report of the commissioners setting apart the same, without administration, to the widow who had no minor children.
The controversy hinges around the value of such homestead, which is eighty acres in area. Commissioners were appointed and made their report that such real estate was worth $1500. Exceptions were filed to that report, claiming that the land was worth more than $2,000. A trial was had before the judge of probate and witnesses were examined and testified orally before him. At the conclusion of the trial, the judge made the following announcement: The judgment of the court is set out at length in the transcript. It makes no reference to such average value from the testimony of the witnesses, and in which the court observed: 'After hearing all the legal evidence offered on both sides of said issue between the exceptors and the petitioner, and after hearing the argument of the attorneys, and after a consideration of all such legal evidence, the court is of the opinion that the parties filing such exceptions have failed to establish the grounds of their exceptions.' The decree of the court then proceeded to confirm the report of the commissioners and further decreed the real estate left by decedent does not exceed in area one hundred and sixty acres nor in value the sum of $2,000 at the time of the death of decedent, and constituted all the real estate owned by him at the time of his death in this State. The decree contained other provisions with respect to the vesting of title, which are not important here to recite.
The contention of appellant is that the announcement made by the trial judge, which we have quoted, shows that he ascertained a quotient from the testimony given by the witnesses and that he considered that as controlling in fixing the value of the property at less than $2,000. Appellant contends that such announcement of the judge entered into and was a factor of his decree, or that it showed error on the part of the judge in arriving at the result shown by the decree. Appellant seeks to apply to that situation a principle well established in this State as well as elsewhere that the verdict of a jury will be set aside on motion, where it is made to appear by legal evidence that it is fixed by a quotient representing the average of the amounts each juror may express as his opinion, when prior to such ascertainment of the average the members of the jury agreed expressly or impliedly that such average or quotient would be used as a basis for their verdict and when their verdict reflected such agreement.
It is unnecessary for us to cite our cases on that subject as that is not the situation here involved. But it is akin to one where in estimating the damages to which plaintiff is entitled an average of the amounts testified to by the witnesses is given emphasis by the jury. It is generally held not improper for a jury to strike such an average from the testimony of the witnesses and use it as influential in fixing the amount of the damages under consideration, although it should not be resorted to without regard to the intelligence, capacity and disinterestedness of the witnesses. Such theory of law is recognized, 64 Corpus Juris 832, page 1037, and the basis of that text seems to be predicated upon decisions widely scattered, which seem fully to support it, as follows:
In Harrison v. Powell, 24 Ga. 530, where there was conflicting and contradictory evidence as to the value or worth of a slave by reason of his unsoundness, and the jury adopted an average as to the measure of their verdict, the finding was held not illegal on that account, the court saying: ...
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Cozart v. State, 8 Div. 934
...before us the evidence on which the trial judge made his findings of jurisdictional facts, we cannot review his ruling. Beasley v. Beasley, 256 Ala. 647, 57 So.2d 69. The question as to jurisdiction of the subject matter, if it falls under State v. Blair, 238 Ala. 377, 191 So. 237, can be l......
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