Bell v. Burkhalter

• Citation: 62 So. 786,183 Ala. 527
• Parties: BELL v. BURKHALTER et al.
• Decision Date: 13 May 1913
• Court: Alabama Supreme Court

62 So. 786

183 Ala. 527

BELL v. BURKHALTER et al.

Supreme Court of Alabama

May 13, 1913

Rehearing Denied June 19, 1913

Appeal from Chancery Court, Pickens County; Thomas H. Smith Chancellor.

Bill by William Burkhalter and others against A.E. Bell. From a decree for complainants, defendant appeals. Affirmed.

Jones &amp Persons, of Tuscaloosa, for appellant.

John S Stone, of Birmingham, and Patton & Patton, of Carrollton, for appellees.

McCLELLAN J.

The statement of and consideration given this cause on former appeal may be found in 57 So. 460. The applicable substantive law sustaining the complainants' rights will not be reiterated. After the return of the cause to the court below the bill was amended by the incorporation therein of averments leading to the partition of the land or its sale for division. Demurrers were sustained to the bill as it then stood. Subsequently the bill was amended by the substitution of the present bill, which is, as at first and as stated in 57 So. 460, a bill to cancel certain conveyances, restrain waste, and effect an accounting for timber cut by respondent (appellant) from the lands described.

In reliance upon rule 10 of chancery practice, the respondent moved to strike the bill because it contained a blank. The "blank" consists in this: In averring the death of Elvira Brown, whose heirs at law complainants are (among others), it is alleged she "died in, to wit, the year 190--." In view of the averments of the whole substituted bill, its nature and objects, the allegation of the exact year of her death was not important, indeed was immaterial. While pleading should not, as rule 10 contemplates, contain blanks, and solicitors should avoid them in every instance, we do not think the rule intends that an omission of the immaterial character here present should draw upon the bill the entirely disproportionate penalty of striking the bill from the file. The chancellor denied the motion; and, under the circumstances indicated, his conclusion will not be disturbed.

Among the complainants is Lutera Brown. In the substituted bill following exactly this feature of the original bill, these averments occur: "That Lutera Brown became 18 years of age on the 25th day of March, 1908, and was married some time prior to that time and now resides with her husband near Tupelo, Lee county, Miss." The original bill was filed August 11, 1908. The substituted bill was allowed and filed July 29, 1912. It thus appears, as a necessary result from the age of Lutera Brown expressly averred in the substituted bill, that she became 21 years of age on March 28, 1911 being 18 on that day in the year 1908. The demurrer to the substituted bill was filed September 10, 1912, more than a year after ...