Briggs v. Prowell

• Decision Date: 01 June 1922
• Docket Number: 6 Div. 526.
• Parties: BRIGGS v. PROWELL.
• Court: Alabama Supreme Court

93 So. 590

207 Ala. 629

BRIGGS v. PROWELL.

6 Div. 526.

Supreme Court of Alabama

June 1, 1922

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action of unlawful detainer and forcible entry by V. Q. Prowell against W. S. Briggs. From a judgment for plaintiff defendant appeals. Affirmed.

J. A Simpson, of Birmingham, for appellant.

Coleman & Coleman & Spain, of Birmingham, for appellee.

MILLER J.

V. Q Prowell filed this suit in the municipal court of Birmingham against W. S. Briggs to secure possession of lot 177 designated by No. 1512 on Second avenue in West End, Birmingham, Ala.

There were two counts in the complaint. One was in form No. 27, unlawful detainer; and the other was in form No. 28, forcible entry and unlawful detainer. 2 Civil Code (1907) p. 1200.

This municipal court has the jurisdiction of a justice of the peace court. Upon verified petition of the defendant under and as allowed by section 4283, and in accordance with section 4284 of the Code of 1907, the cause was removed from the municipal court to the circuit court for trial of title to the property. In the circuit court the defendant filed a motion in writing under an act approved September 28, 1915 (Gen. Acts 1915, p. 830), to transfer the cause to the equity side of the docket. Plaintiff demurred to the motion; it was sustained by the court; the cause was tried by the court without a jury; and judgment was rendered in favor of plaintiff. The defendant appeals from this judgment, and assigns as error the order and judgment of the court sustaining demurrers of plaintiff to the motion of defendant to transfer the cause to the equity side of the docket. There is no bill of exceptions in the record. We have not before us the evidence on which the court rendered the final judgment in favor of the plaintiff for the lot. That part of the act (Gen. Acts 1915, p. 830) applicable reads:

"If an equitable question, the decision of which should dispose of the cause and which cannot be disposed of in the law side of the court, depends upon the assertion of an equitable right or defense by a party who is defendant or an intervening claimant in such suit at law, such party may assert such right or defense by a written motion filed in the cause, which shall state the substance of the equitable right or defense and be verified by the affidavit of some person having knowledge of the facts, and the legal sufficiency of such motion may be tested by demurrer and the facts therein may be controverted by affidavit." Section 2.

In order to bring this case of forcible entry and unlawful detainer from the municipal court into the circuit court, it was necessary, it was essential, under the statute, section 4283 of the Code of 1907, for the defendant to state under oath that he "entered on the land sued for peaceably and under claim of title thereto, and not under claim of any agreement, contract, or understanding with the plaintiff, or those under whom he claims, and that [he] bona fide desires to contest with plaintiff the title to said land." Section 4283, Code 1907.

This statement under oath was made by defendant, and he thereby secured the removal of the cause from the municipal into the circuit court. Section 4284, Code 1907. The defendant now by motion in writing seeks to transfer this cause in the circuit court from the law side to the equity side of the docket by averring in the motion under oath that he has an equitable right or defense growing out of a contractual relation between plaintiff and W. D. Mullins in regard to the land or lot, and that "W. D. Mullins through mesne conveyance conveyed his interest in said property to Simpson-De Ramus Realty Company," and "defendant bought out the interests of Simpson-De Ramus Realty Company in the property in question prior to his (defendant's) entry thereon, and prior to plaintiff's attempt to foreclose against the rights of said Simpson-De Ramus Company."

The defendant's equity, if it exists, grows out of his agreement, contract, or understanding with Simpson-De Ramus Realty Company. The motion to remove the cause to the equity docket is based entirely upon alleged contractual relations existing between the predecessors in title to the defendant with plaintiff. These averments under oath in the motion are inconsistent with and repugnant to the statements under oath in the petition to remove the cause from the municipal court to the circuit court. The defendant could not introduce testimony in this cause to contradict the statements in the petition...