Case v. Ward

• Decision Date: 13 February 1964
• Docket Number: 1 Div. 999
• Citation: 160 So.2d 859,276 Ala. 242
• Parties: A. B. CASE and Willella S. Case v. George W. WARD.
• Court: Alabama Supreme Court

Page 859

160 So.2d 859

276 Ala. 242

A. B. CASE and Willella S. Case v. George W. WARD.

1 Div. 999.

Supreme Court of Alabama.

Feb. 13, 1964.

W. Dewitt Reams and Hubert P. Robertson for Pillans, Reams, Tappan, Wood & Roberts, Mobile, for appellants.

Caffey, Gallalee & Caffey and Robt. S. Edington, Mobile, for appellee.

COLEMAN, Justice.

This is an appeal by respondents from a decree quieting title in complainant to certain lots in the City of Mobile.

Complainant filed his bill which recites that:

'2. Complainant avers that he is in peaceable possession of the following described lands in Mobile County, Alabama, claiming to own the same in fee simple, viz.:

'Lots 17 and 18 and all of Lot 16 in Block 13 of Glendale Park according to Map thereof recorded in Deed Book 61 N. S. pages 316-317, Probate Court Records of Mobile County, Alabama, except the following portion of said Lot 16, namely: Beginning at the southeast corner of Lot 16 in Block 13 of Glendale Park according to a map thereof recorded in Deed Book 61 N. S. pages 316-317 Probate Records of Mobile County, Alabama, running thence 10 feet westwardly along the south line of Lot 16 to a point, running thence north 39 degrees and 9 1/2 minutes east to a point on the east line of Lot 16, and running thence southwardly along the east line of Lot 16 to the southeast corner thereof, and the point of beginning.'

Complainant avers also that respondents claim some interest in the land and calls on them to set forth their title and how it was created.

Respondents filed answer which was made a cross bill. They deny that complainant is in peaceable possession of or owns the land, and also aver that:

'3. Respondents claim title to said property by reason of said Lots 16, 17 and 18 in Block 13 of Glendale Park having been subject to a decree for the sale of said property for the payment of due and unpaid assessments for public improvements made by the city of Mobile, together with charges, penalties, interest and costs, including costs of court and expenses of sale; by reason of the sale of said property pursuant to said decree to the City of Mobile on the 27th day of January, 1941; by a deed conveying said property made by the Register of the Circuit Court of Mobile County, Alabama, to the City of Mobile on the 27th day of January, 1941, which deed is recorded in Real Property Book 113, page 210 of the records in the office of the Judge of the Probate Court of Mobile County, Alabama, and by a conveyance by the City of Mobile to Willella S. Case of the title to said property by deed dated the 18th day of November, 1959, and recorded in Real Property Book 113, page 211 of the records in the office of the Judge of the Probate Court of Mobile County, Alabama.'

Complainant answered the cross bill, denying that respondents, or either of them, have any interest in the land, and averring that complainant:

'2. . . . claims title to the property described in the complaint under and by virtue of a valid tax sale on, to-wit, the 16th day of August 1934, to the State of Alabama against F. Wolfshon, the owner thereof for non-payment of the taxes assessed against said owner for the tax year 1933; the deed of the State Land Commissioners to complainant George B. Ward dated January 26, 1944, recorded in Deed Book 380 at pages 263-264, and the matters and things hereinafter alleged.

'3. Complainant avers that at the time he purchased and acquired the tax deed from the State of Alabama hereinabove referred to, the City of Mobile had never taken possession of and was not in possession of the property described in the bill of complaint, and has never been in possession of or asserted any title to or interest in said property except in so far as the execution of the quit-claim deed to respondent Willella S. Case may indicate such a claim.'

In the answer, complainant further averred in detail that he took possession in February, 1944, and that since that time he has been in 'the open, notorious, continuous, uninterrupted and peaceable possession and use of the property described in the complaint,' etc.

At the outset, appellee, the complainant, asserts that appellants have failed to comply with Rule 9 of the Revised Rules of this court, which recites in pertinent part as follows:

'Appellant's brief under separate headings shall contain: (a) under the heading 'Statement of the Case,' a concise statement of so much of the record as fully presents every error and exception relied upon referring to the pages of the transcript; (b) under the heading 'Statement of the Facts,' a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely, referring to the pages of the transcript, and if the insufficiency of the evidence to sustain the verdict or finding, in fact or law, is assigned, then the statement shall contain a condensed recital of the evidence given by each witness in narrative form bearing on the points in issue so as to fully present the substance of the testimony of the witness clearly and concisely; . . ..' Title 7, Recompiled 1958, page 1159.

Appellants' 'STATEMENT OF THE CASE' commences:

'This case, on appeal, presents three basic questions:';

and then proceeds to hypothesize certain facts and asks: A. Whether respondents' title is defeated; B. Could title be decreed to be in complainant without requiring complainant to reimburse respondents for the money they paid to the city; and, C. Was the decree correct in decreeing that complainant was the owner in fee simple.

We are of opinion that these questions fall short of being 'a concise statement of so much of the record as fully presents every error and exception relied upon.'

The substantial deficiency in appellants' brief is the failure to set out 'a condensed recital of the evidence given by each witness in narrative form,' etc., as required by Rule 9 where the insufficiency of the evidence to sustain the verdict or finding, in fact or law, is assigned. Appellee states in brief:

'The writer's feeling about this phase of Rule 9 is that it requires work on the part of lawyers out of all proportion to benefits or aid to this Court. And if this Court is to ignore and condone flagrant violations of the Rule by attorneys representing Appellants, the Rule obviously will be of no benefit whatever to this Court, but will impose on lawyers who conscientiously believe in complying with the Rules of this Court, a burden which they should not be required to bear, when others are permitted with impunity to ignore such requirements.

'Our position is and has consistently been, that the Rule is a hard rule, and should be abolished by the Court, but until it is, it should be obeyed by all lawyers, without exception, and unless it is so obeyed, no lawyer disobeying the Rule should be permitted to reverse a decree dependent on the sufficiency of the evidence 'in law or in fact', not having presented in their brief the facts upon which they rely to show the insufficiency of the evidence to support the decree sought to be reversed in the manner expressly and mandatorily required by the Rule. Appellants should be treated as not having 'substantially argued' such assignment, and any such assignment should 'be deemed waived' and should not be considered by the Court. If applied, this would result in affirmance of the decree and (sic) its further consideration. This is the only ruling the Court can make which is consistent with the validity and uniform application of the Rule.

'The brief in this case contains what purports to be a 'statement of facts' covering pages 4-7, and slightly over half of page 8, or a total of four and one-half pages of brief paper. The transcript of the...