Bibby v. Thomas

• Decision Date: 21 November 1901
• Parties: BIBBY v. THOMAS.
• Court: Alabama Supreme Court

31 So. 432

131 Ala. 350

BIBBY v. THOMAS.

Supreme Court of Alabama

November 21, 1901

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by Richard Thomas against William Bibby. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This was an action of forcible entry and detainer, and was originally instituted in the justice court by the appellee against appellant. The complaint, as originally filed in the justice court and the city court described the property as "one house and lot in Littleton, Jefferson county Alabama, in the N.E. 1/4 of S.W. 1/4 of Sec. 31, T. 15, R. 4 of which plaintiff was in possession," etc. By amendment the description was made more certain and definite by setting out the metes and bounds, and to this amendment objection was made because of an alleged departure. By another amendment to the complaint it was alleged that defendant, after entering upon the premises, warned all persons, and especially the plaintiff, to keep off the premises. A motion to strike this part of the complaint was overruled. The defendant filed four special pleas besides the general issue. The first alleged that plaintiff was never in possession; the second, that he was never in rightful possession; and, the third, that he was never in undisputed possession. The fourth special plea among other things, set up as a defense that plaintiff had wrongfully and forcibly obtained and held possession from defendant. A demurrer to the first three special pleas and a motion to strike the fourth were sustained. Upon the trial it was disclosed that on or about the 20th of June, 1898, the plaintiff rented the premises to one McDonald, who occupied the same and paid rent to the plaintiff from that time until September, 1899; that in September, 1899, when said McDonald was moving from the premises, and before he had finished, two negroes, Lockett and Moore, who were originally made defendants, but against whom the cause was discontinued moved into the house, and stated that they were taking possession under and for the defendant. The plaintiff's testimony further tended to show that soon after McDonald moved from, and Lockett and Moore moved upon, the premises, the agent of plaintiff met the defendant, and was warned by the defendant not to enter upon the premises, and threatened with a criminal prosecution if he did so. No objection was made by any one when Lockett and Moore moved upon the premises, and no force was used by them. The plaintiff also offered evidence to show that he had instructed an agent to take possession of the premises when McDonald moved off. The testimony for the defendant tended to show that he had been in possession of the premises from 1889 until June 22, 1898; that in 1898 he rented the premises to one Dunbar, and that in June of that year, while defendant was absent, Dunbar moved out and McDonald moved in; that he made repeated demands upon McDonald for rent, which he refused to pay, and he never consented to his occupancy. The other facts sufficiently appear in the opinion. The cause was tried by the court without a jury, and judgment rendered for the plaintiff. The defendant appeals, and assigns for error the judgment for plaintiff and rulings of the court upon the pleadings and proof.

John J. Moore, for appellant.

W. K. Terry and Bowman & Harsh, for appellee.

DOWDELL J.

While it is not necessary, in a complaint for forcible entry and unlawful detainer, to aver that the defendant, after entering upon said premises, warned all other persons, especially the plaintiff, to keep off the...