Brown v. Leek, 7 Div. 944.

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation221 Ala. 319,128 So. 608
Docket Number7 Div. 944.
Decision Date29 May 1930
PartiesBROWN v. LEEK.

128 So. 608

221 Ala. 319

BROWN
v.
LEEK.

7 Div. 944.

Supreme Court of Alabama

May 29, 1930


Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.

Action in trover and trespass by Mrs. M. M. Leek against Watt T. Brown. From a judgment for plaintiff, defendant appeals Transferred from Court of Appeals.

Reversed and remanded. [128 So. 609.]

Mullins, Jenkins & Pointer, of Birmingham, and W. T. Starnes, of Pell City, for appellant.

Frank B. Embry, of Pell City, for appellee.

THOMAS, J.

The trial was had for conversion of timber and trespass in taking timber.

There was no error in permitting plaintiff's counsel to put his side of the case to the jury, within reasonable limitations, and to state what he expected the proof would show; not however to introduce immaterial and prejudicial matter before the jury. Rose v. Magro (Ala. Sup.) 124 So. 296; Loeb v. Webster, 213 Ala. 99, 104 So. 25; Southern Ins. Co. v. Tate, 22 Ala. App. 72, 112 So. 365; Id., 216 Ala. 694, 112 So. 918.

There was no error in permitting the plaintiff to answer a preliminary question of whether or not her husband was dead. She was merely indicating that she claimed the land by way of a conveyance thereof from the husband (Sovereign Camp, W. O. W., v. Hoomes, 219 Ala. 560, 122 So. 686), and that she had other agents to look after it for her before and at the time of the trespass in question. There is nothing in the insistence that the question and answer were unduly calculated to arouse sympathy for appellee. Coker v. Coker, 209 Ala. 295, 96 So. 201.

The plaintiff had testified that she owned or claimed no other lands in the county of St. Clair; that she regularly and yearly paid the taxes thereon. The receipts therefor offered in evidence were relevant. The effect of such evidence was for the jury. Shepherd v. Sartain, 185 Ala. 439, 64 So. 57. They were not in the nature of conclusions, nor were they a substitution for the primary character of written evidence. It was merely a process of going forward with evidence material to the inquiry as to the ownership of the timber on or taken from the land of plaintiff and for which the suit was sought to be maintained. The witness had shown that she acquired conveyance to said lands, regularly assessed the same for taxes each year, paid the required taxes thereon for more than the last ten years, and had no other lands in that county. This made proper the tax receipts as mere or reasonable...

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11 practice notes
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...is to be confined to and conducted within reasonable limitation of the court. Pope v. State, 174 Ala. 63, 57 So. 245; Brown v. Leek, 221 Ala. 319, 128 So. 608, and authorities; Handley v. State, 214 Ala. 172, 106 So. 692; Rose v. Magro, supra; Wilson v. State, 21 Ala. App. 35, 104 So. 876. ......
  • Wilkey v. State ex rel. Smith, 6 Div. 603.
    • United States
    • Supreme Court of Alabama
    • December 21, 1939
    ...So. 741, it was held not to be improper to state the facts or to remark that the mother would suffer by baby's death. In Brown v. Leek, 221 Ala. 319, 128 So. 608, it was held that immaterial and prejudicial matter may not be introduced in opening statement of counsel, that the time, manner ......
  • Daniels v. State, 1 Div. 162.
    • United States
    • Supreme Court of Alabama
    • January 21, 1943
    ...so as to enable them to understand the case to be tried. In the statement counsel may outline what he expects to prove (Brown v. Leek, 221 Ala. 319, 128 So. 608; Atlanta Life Ins. Co. v. Canady, 225 Ala. 377, 143 So. 561), unless it is manifest that such proof would be incompetent or the of......
  • Robinson v. State, 1 Div. 163.
    • United States
    • Supreme Court of Alabama
    • January 28, 1943
    ...So. 741, it was held not to be improper to state the facts or to remark that the mother would suffer by baby's death. In Brown v. Leek, 221 Ala. 319, 128 So. 608, it was held that immaterial and prejudicial matter may not be introduced in opening statement of counsel, that the time, manner ......
  • Request a trial to view additional results
11 cases
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...is to be confined to and conducted within reasonable limitation of the court. Pope v. State, 174 Ala. 63, 57 So. 245; Brown v. Leek, 221 Ala. 319, 128 So. 608, and authorities; Handley v. State, 214 Ala. 172, 106 So. 692; Rose v. Magro, supra; Wilson v. State, 21 Ala. App. 35, 104 So. 876. ......
  • Wilkey v. State ex rel. Smith, 6 Div. 603.
    • United States
    • Supreme Court of Alabama
    • December 21, 1939
    ...So. 741, it was held not to be improper to state the facts or to remark that the mother would suffer by baby's death. In Brown v. Leek, 221 Ala. 319, 128 So. 608, it was held that immaterial and prejudicial matter may not be introduced in opening statement of counsel, that the time, manner ......
  • Daniels v. State, 1 Div. 162.
    • United States
    • Supreme Court of Alabama
    • January 21, 1943
    ...so as to enable them to understand the case to be tried. In the statement counsel may outline what he expects to prove (Brown v. Leek, 221 Ala. 319, 128 So. 608; Atlanta Life Ins. Co. v. Canady, 225 Ala. 377, 143 So. 561), unless it is manifest that such proof would be incompetent or the of......
  • Robinson v. State, 1 Div. 163.
    • United States
    • Supreme Court of Alabama
    • January 28, 1943
    ...So. 741, it was held not to be improper to state the facts or to remark that the mother would suffer by baby's death. In Brown v. Leek, 221 Ala. 319, 128 So. 608, it was held that immaterial and prejudicial matter may not be introduced in opening statement of counsel, that the time, manner ......
  • Request a trial to view additional results

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