Cofer v. Scroggins

• Decision Date: 02 May 1893
• Citation: 13 So. 115,98 Ala. 342
• Parties: COFER v. SCHROGGINS.
• Court: Alabama Supreme Court

13 So. 115

98 Ala. 342

COFER v. SCHROGGINS.

Supreme Court of Alabama

May 2, 1893

Appeal from circuit court, Cullman county; H. C. Speake, Judge.

Action by W. T. L. Cofer against Robert Jones for debt, aided by attachment, in which plaintiff had judgment. Mary J Scroggins, defendant's adopted daughter, filed a declaration of claim of exemption, and in the contest of exemption proceedings had judgment, and plaintiff appeals. Modified.

The evidence on the part of the plaintiff tended to show that on December 3, 1888, the plaintiff, W. T. L. Cofer, sued out an attachment against one Robert Jones on a debt contracted after April, 1873, and the same was levied by the sheriff of Cullman county, Ala., upon the N. 1/2 of the S.W. 1/4 of section 14, township 10, range 2 W., in said county and state; and that at the July term, in 1891, of the circuit court the plaintiff recovered a judgment against said Jones for the sum of $103.24; that said Jones was the owner of the said above-described land, and occupied and used the same up to January or February, 1886, when he left the land and state. The defendant, being introduced as a witness in her own behalf, testified that she was the adopted daughter of Robert Jones; that she was 22 years old in February, 1892 was married, and was living with her husband; that said Robert Jones was in possession of the land involved in this suit, exercising acts of ownership over the same, and owned the same up to the time he left Cullman county, in the early part of 1886; that when he left the state he left his wife who has since died, and the defendant herself is now residing upon the land above described, and has resided upon the same continuously since the said Jones left in 1886. The defendant further testified that she was the Mary Jane Stephenson who was adopted by Robert Jones in 1882; that she afterwards married one Scroggins; that she lived with the said Jones on the land involved in this suit from the time he adopted her up to the time he left in 1886, and that the land was the homestead of Jones, and was occupied by him as such, and was the only land he owned; that her husband has made considerable improvements on the land; that on the day she filed her claim of exemption in the probate court of Cullman county she was a resident of the state of Alabama, and intended to remain a resident of said state; and that the land in contest did not exceed $2,000 in value at the time said claim of exemption was filed nor at the time of the filing of the contest, nor at the time of the trial. During the examination of this witness she was asked by her counsel the following question: "State whether or not you were a resident of this county and state, and whether you intended to remain so in December, 1888." The plaintiff objected to this question, and duly excepted, and the court overruled his objection. The defendant answered that she was, and intended to remain so. She was then asked by her counsel the following questions, and the plaintiff separately excepted to the asking of each of them, and to the court's allowing the defendant to answer the same: "What were the improvements on the land in 1886, when Robt. Jones left, and what were their condition?" "State whether or not any other improvements have been made on the land since Jones left, by you or for you?" On cross-examination of this witness the plaintiff asked her the following questions "Was his [Robert Jones'] wife on good terms with him when he left?" and "Did his [Robert Jones'] wife go with him?" The court sustained the defendant's objections to each of these questions, and the plaintiff separately excepted. The defendant next introduced in evidence a certified copy of the record of the claim of exemptions. The plaintiff objected to the introduction of the said record, on the ground that the plaintiff's claim to exemption was the best evidence. The court overruled the objection, and the plaintiff excepted. The defendant introduced in evidence a certified transcript of the minute entry of the probate court of Cullman county, in which said Robert Jones adopted her, Mary Stephenson. Plaintiff objected to the introduction of this paper in writing, and duly excepted to the court overruling his objection. Upon the introduction of all the evidence the court made the following remark to the defendant's counsel: "If you ask the general charge in writing, I will give it." The plaintiff duly excepted to this remark, and also excepted to the court's giving the general affirmative charge at the request of the defendant.

W. R. Austin and W. T. L. Cofer, for appellant.

Geo. H. Parker, for appellee.

HARALSON J.

1. The question propounded to the defendant on her examination as a witness, "State whether or not you were a resident of this county and state, and whether you intended to remain so, in December, 1888," contains two inquiries, either of which might have been differently answered. The first-whether she was a resident of this state-is a collective fact, ( Pollock v. Gantt, 69 Ala. 373; Hood v. Disston, 90 Ala. 379, 7 South. Rep. 732,) and was legal and pertinent, as only residents are entitled to exemptions; the second, calling for her intentions, was not, ( Sternau v. Marx, 58 Ala. 608; Wilson v. State, 73 Ala. 527.) But it is a familiar rule that, where there is a general objection to evidence, as in this instance, a part of which is legal and another part illegal, it may be overruled. Railroad Co. v. Jones, 92 Ala. 225, 9 South. Rep. 276.

2. The questions allowed to be asked defendant, and excepted to by plaintiff, "What were the improvements on said land in 1886, when Robert Jones left, and what were their condition?" and whether any "improvements have been made on the land since Jones left, by you or for you," were not improper, since answers to them might tend to show the value of the property,-an important inquiry, in one phase of the case. The answer to the last question, "A right smart improvements have been made in clearing and fencing," was a mere conclusion of facts, an inference necessarily involving facts as to the quantity of land cleared and fenced, which, as a collective fact, was properly allowable, subject to the cross-examination of the plaintiff, if he desired the matter stated more explicitly or in detail. Railroad Co. v. McLendon, 63 Ala. 276; Hood v. Disston, 90 Ala. 379, 7 South. Rep. 732. Besides, a sufficient answer to all these exceptions is that, if material, they could not have influenced a jury in any way, since the court gave the general charge for the defendant, thereby withdrawing from the jury all consideration of the facts, except as to their belief of them, there being no conflict in the evidence. 1 Greenl. Ev. § 52.

3. There was no error in refusing to allow plaintiff to ask defendant on her...