Blalock v. Johnson

• Decision Date: 02 June 1960
• Docket Number: 5 Div. 657
• Citation: 121 So.2d 604,270 Ala. 654
• Parties: J. W. BLALOCK et al. v. J. Matt JOHNSON.
• Court: Alabama Supreme Court

Page 604

121 So.2d 604

270 Ala. 654

J. W. BLALOCK et al. v. J. Matt JOHNSON.

5 Div. 657.

Supreme Court of Alabama.

June 2, 1960.

Glen T. Bashore and Walter C. Hayden, Jr., Clanton, for appellants.

Omar L. Reynolds, Reynolds & Reynolds, Clanton, for appellee.

LAWSON, Justice.

This case was submitted on briefs without oral argument. At time of submission it was assigned to another Justice. It was assigned to the writer of this opinion on February 8, 1960.

The original bill was filed in the Chilton County Law and Equity Court, in Equity, on January 30, 1951, by J. Matt Johnson against J. A. Blalock and wife, Tellia Blalock, for the purpose of having the court define a boundary line between coterminous owners. §§ 2-4, Title 47, Code 1940; § 129, subdiv. 5, Title 13, Code 1940.

From a decree overruling their demurrer to the bill as then amended, the respondents appealed to this court. We affirmed on October 18, 1951. Blalock v. Johnson, 256 Ala. 349, 54 So.2d 611.

On July 1, 1952, the complainant Johnson filed a substituted bill. On the same day he directed the court's attention to the fact that the respondent J. A. Blalock died on February 14, 1952. On July 2, 1952, an order was entered by the court substituting Tellia Blalock and Woodrow Blalock, 'the heirs and distributees of the said J. A. Blalock * * * in lieu of the deceased respondent, J. A. Blalock.'

Testimony was taken before the ex officio register on several occasions, the first being in December, 1952, and the last in January, 1955. A showing for an absent witness was filed on September 30, 1955.

On September 9, 1955, the Governor approved Act No. 403, (Acts of Alabama, 1955, Vol. 2, p. 941), which abolished the Chilton County Law and Equity Court and created the County Court of Chilton County. In § 31 of that act it was provided that all cases pending in the Chilton County Law and Equity Court at the time the Act became law should immediately 'become pending upon the docket of the County Court of Chilton County * * *.'

Complainant's note of testimony was filed on May 23, 1956, and respondents' on June 14, 1956.

The special judge to whom the cause was submitted rendered a final decree on June 14, 1956. The decree was filed in the office of the ex officio register on June 23, 1956.

The final decree fixed the boundary line substantially in accordance with the complainant's contentions. The respondents have appealed to this court.

The cause was submitted here on appellee's motion to dismiss the appeal and on the merits.

Motion to Dismiss Appeal

There are grounds of the motion to the effect that the appeal should be dismissed because there was no citation of appeal served on appellee or his attorney as provided in § 801, Title 7, Code 1940, and no certificate of appeal was made out by the ex officio register and filed with the clerk of this court as provided by Supreme Court Rule 38, Code 1940, Tit. 7 Appendix.

After the motion to dismiss was filed a supplemental transcript was brought to this court showing belated compliance with the deficiencies pointed out in the grounds of the motion to dismiss presently under consideration. The supplemental transcript was filed several weeks before the cause was ready for submission on briefs. Under the recent decisions of this court the grounds of the motion to dismiss the appeal presently under consideration must be overruled. Benson-Jackson-Mathers Post No. 5106 v. Donaldson, 267 Ala. 60, 99 So.2d 688; Louisville Fire & Marine Ins. Co. v. St. Paul Fire & Marine Ins. Co., 252 Ala. 532, 41 So.2d 585; Mutual Sav. Life Ins. Co. v. Osborne, 242 Ala. 19, 7 So.2d 319.

The trial court, at the request of the appellants, extended the time for the filing of the transcript in this court for a period of thirty days, as is authorized under Supreme Court Rule 37. However, a copy of the trial judge's order was not filed in this court within five days from the date the order was made, as is provided in Rule 37. The failure to file the trial judge's order within the five-day period is made the basis of a ground of the motion to dismiss.

It does not appear that appellee was in any way prejudiced by the failure to file the trial judge's order of extension within the five-day period. This portion of Rule 37 is directory and is for the purpose of informing this court as to the status of the appeal and whether or not the judge has in fact extended the time. In the instant case the judge did extend the time within the prescriptive period of the rule. We hold that this ground of the motion to dismiss should be overruled. Mitchell v. Helms, Ala., 115 So.2d 664.

The remaining ground of the motion to dismiss the appeal is that this is now a moot case. This insistence is based on the fact that since the appeal was perfected to this court the appellants, the respondents below, agreed in writing that they would convey to persons not involved in this litigation such title or interest as the courts might ultimately declare that they have in the small tract of land, title to which is involved in this proceeding.

The contract to sell in the event they are successful in this litigation does not, in our opinion, deprive the appellants of the right to prosecute this appeal. Their interest in the property in litigation has not yet been conveyed and their right to convey good title is dependent upon action by this court favorable to them.

The motion to dismiss the appeal is overruled.

On the Merits

The decree became final on June 23, 1956, the day on which it was filed in the office of the ex officio register. Evett v. Mitchell, 251 Ala. 22, 36 So.2d 98.

On the preceding day, June 22, 1956, the respondents filed a pleading which they called an amendment to their answer and a cross bill. Respondents say that the decree of June 23, 1956, ignores this pleading and hence it should be reversed.

The pleading in question is not an amendment to the answer. It does not admit, deny or set up matters in avoidance of any of the averments of the bill. Equity Rule 25, Code 1940, Tit. 7 Appendix. It is not to be considered as an answer simply because it is so labeled by counsel for respondents.

The pleading filed on June 22, 1956, is a cross bill and nothing else. In Wilkins v. Reliance Equipment Co., 259 Ala. 348, 352, 67 So.2d 16, 19, it was said: '* * * The principle declared in our cases is that a trial on the original and cross-bill is to be had at the same time. But when the cross-complainant has not taken needed steps to get the cross-bill at issue and prepare same for trial, the court may proceed on the original bill and answer though there is also a cross-bill. Thomas v. Skeggs, 223 Ala. 598(4), 137 So. 443 * * *.' Here the respondents waited until after the cause was submitted and a final decree rendered, though not enrolled, before they filed their cross bill. Under such circumstances the trial court was justified in ignoring the cross bill. See Carson v. Sleigh, 201 Ala. 373, 78 So. 229.

All of the land involved in this litigation is in 'the Northeast Quarter of the Southwest Quarter of Section 13, Township 23, Range 15' in Chilton County, Alabama.

The complainant and the respondents own the 'North side' of this quarter section, which is in the form of a peninsula. The complainant's land is east of that of the respondents. Lay Dam Lake is to the east of the peninsula and sloughs from the lake form the northern and southern boundaries of the peninsula.

The land in dispute is in the form of a triangle. The apex of the triangle is on the northern line of the quarter section. The base of the triangle lies along the northern side of the slough which forms the southern boundary of the peninsula.

For the purpose of a better understanding of the issues presented, we are including in the opinion a rough sketch of the locus of the dispute. This sketch was not introduced in evidence; it is not drawn to scale; it is merely our understanding of the general location of the land here involved and its surroundings as indicated by the pleadings and the evidence.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

All of the land shown by the diagram was owned at one time by R. N. Ransom.

On May 14, 1935, Ransom executed a deed to H. H. Pickens, which describes the land substantially as follows: From A, the point of beginning, which is an established point 1,069 feet east of Z, the NW corner of the NE 1/4 of the SW 1/4 of Section 13, Township 23, Range 15, the description runs east 251 feet to B, which also appears to be an established section corner. From B the description runs south 3 degrees 30 minutes east a distance of 231 feet to C on the shore line of Lay Dam Lake. From C the description runs south 20 degrees 30 minutes west along the shore line of Lay Dam Lake for a distance of 107 feet to D. The next to the last call, the penultimate call, is from D to E on the diagram, the call reading: 'thence North 80 degrees, 30 minutes West along the shore line of Lay Dam Lake [slough] 411 feet.' The final call from E to F is 'thence North 267 feet to the point of beginning.'

The trouble is that this last call does not close the description. It does not bring a surveyor to the point of beginning.

H. H. Pickens sold to Basil P. Autry by deed dated January 17, 1938. In this conveyance the same description was used as in the conveyance from Ransom to Pickens.

On March 10, 1938, Ransom executed a deed to E. L. Nicholson purporting to convey the lands included in the diagram above, situated west of the land conveyed to Pickens in 1935.

The description in the deed from Ransom to E. L. Nicholson is substantially as follows: From X, the point of beginning, which is a black gum tree at the head of the slough, the description runs due west to Y on the section line on the west side of the section. The distance from X to Y is not shown. From Y the description runs north along the section line to Z. The distance from Y to Z is not...