Dollar v. McKinney
| Decision Date | 14 September 1961 |
| Docket Number | 7 Div. 439 |
| Citation | 133 So.2d 673,272 Ala. 667 |
| Parties | W. L. DOLLAR et al. v. Audrey S. McKINNEY et al. |
| Court | Alabama Supreme Court |
J. J. Cockrell, Birmingham, for appellants.
Starnes & Holladay, Pell City, for appellees.
This is an appeal from a decree in equity which dissolved a temporary injunction and, in effect, overruled a demurrer to one aspect, and sustained the demurrer to a second aspect, of an amended bill of complaint.
The amended bill, as we understand it, may be regarded as having two aspects. In one aspect, the bill seeks to settle a disputed boundary. In the other aspect, the bill seeks to enjoin the collection of a judgment which one of the respondents recovered against the complainants, in an action at law, for cutting timber on the parcel of land as to which title is alleged to be in dispute, or which is involved in the boundary dispute.
The effect of the decree is to sustain the demurrer to that aspect of the bill which seeks to enjoin collection of the judgment and to overrule the demurrer to that aspect seeking to settle the disputed boundary. The temporary injunction, which was dissolved, enjoined the collection of the same judgment. Complainants have appealed and assign as error the action of the court in dissolving the temporary injunction and in sustaining the demurrer to the aspect of the bill seeking to enjoin collection of the judgment. So the question for decision, as we understand appellants' argument, is whether or not complainants, by the averments of the bill, show a right to enjoin collection of the judgment. If complainants do not, by the averments of the bill, show a right to enjoin collection of the judgment, the decree appealed from must be affirmed. If complainants, by those averments, show such right to enjoin, then the decree must be reversed.
The original bill was filed June 12, 1957, by W. L. Dollar against Mrs. Audrey S McKinney and Leon McKinney. The averments are that complainant, W. L. Dollar, is owner and in possession of a certain described parcel of land; that Mrs. McKinney is the owner of adjoining land; that the common boundary is in dispute; that no suit is pending to test the title or establish the common boundary; that 'the respondent(s) through or by Leon McKinney * * * are at the present time trespassing' upon the lands of complainant, or the lands in dispute, and are removing certain natural boundaries upon the disputed land and attempting to place fences on said lands; that the acts of respondents, if permitted to continue, will cause complainant to suffer irreparable damage; that complainant is without adequate remedy to prevent said trespasses, and injunction is necessary. The bill prays for temporary restraining order to enjoin respondents from such trespasses pending determination of the boundary dispute, for determination of the boundary, for a permanent injunction, for damages, and for general relief. Complainant made bond as required by the court and temporary injunction was issued June 12, 1957, but that temporary injunction was not mentioned in the decree appealed from and is not involved in this appeal.
As best we can ascertain from the record, on November 3, 1958, complainant, W. L. Dollar, filed the amended bill of complaint with which we are here concerned.
The amended bill appears to contain substantially all the allegations of fact set out in the original bill. In addition, the amended bill avers that the respondent, Mrs. Audrey S. McKinney, on, to wit, July 30, 1956, commenced an action at law against complainant, W. L. Dollar, and three others who are made complainants in the amended bill, for damages for trespass committed by cutting trees upon land which is apparently the same land that is in dispute in the instant suit; that in said action at law, judgment for $400 was rendered, on the verdict of a jury, in favor of the plaintiff, Mrs. Audrey S. McKinney, who is one of the respondents in the instant case, and against the complainants in the instant case, namely, W. L. Dollar, Lonnie Nick Dollar, George Crowe, and G. M. Crowe; that said defendants appealed said judgment to this court where it was affirmed as reported in Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785; that said Lonnie Nick Dollar, George Crowe, and G. M. Crowe were acting merely as agents of said W. L. Dollar, and that if said judgment is due to be paid, it should be paid by W. L. Dollar '* * * for as much as the timber cut either belonged to the complainant W. L. Dollar, or to the plaintiff, Audrey S. McKinney which timber for title and ownership was dependent upon the title and ownership of the land, whereon said timber was cut.'; that title to the disputed land could not be settled in said action at law; that the disputed boundary could not be settled in said action; that settlement of the boundary will show that said timber for which judgment was rendered against complainant, W. L. Dollar, was on his land and was his property; that 'Said verdict was obtained by mistake and it would be unconscionable to require your complainant to pay these respondents for timber that conplainant cut on his own land; that such judgment is void in that the foundation of said judgment is the timber cut by the complainant which was on complainant('s)s land and that respondents had no interest therein whatever; that the said judgment is in violation of the due process clause of the 5th and 14th amendment(s) of the Federal Constitution.'
The amended bill further avers that complainant, W. L. Dollar, is physically disabled and that his 'memory has considerably failed him' as the result of a stroke; that a survey of the disputed boundary was made September 17, 1958; that the boundary was agreed on 47 years ago and marked by hacks on trees and a wire fence; that in 1924 the respondent, Audrey McKinney, by her agent, agreed orally with complainant, W. L. Dollar, that said lines were correct and gave 'a drawing of said lands to the said W. L. Dollar'; that due to his infirmity,Dollar mislaid the drawing which has been found since rendition of judgment in said action at law.
The amended bill prays that the court will establish the boundary and settle all matters growing out of the boundary dispute, will 'decree who is the owner of the land from which the timber was cut,' will enjoin collection of the judgment until the boundary is established, and 'if such timber was cut from complainant(')s land the Court will decree the respondents be and are restrained forever from collecting said judgment.'
Complainant made bond, and a temporary injunction restraining collection of the judgment, as prayed for in the amended bill, was issued on November 4, 1958. The case was submitted for decree on objection to the amendment, demurrer to the bill as amended, and motion to dissolve the tempoary injunction. On December 3, 1958, the court entered the decree from which this appeal is taken.
We have again referred to the record filed in this court on the former appeal in Dollar v. McKinney, supra. It contains 175 pages, which includes 147 pages of testimony taken on the trial of that case. That record discloses that verdict was returned and judgment was rendered in favor of the instant respondent, Mrs. Audrey S. McKinney, in the law action, on February 27, 1957, more than three months prior to the commencement of the instant suit in equity, and more than one year and eight months prior to the filing of the amended bill on November 3, 1958, wherein complainant seeks to enjoin collection of the judgment at law. The judgment at law was affirmed on appeal on May 29, 1958, an application for rehearing was denied June 26, 1958, more than four months prior to the filing of the amended bill on November 3, 1958. We have noted that what purports to be an amendment to the original bill, seeking to enjoin collection of the judgment, appears in the record on pages 10 and 11, but this purported amendment is not sworn to and we have not found where it was endorsed as being filed. There does...
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In re Sharpe
...a right to possession of the property. Absent such right of possession, there can be no action based on trespass." Dollar v. McKinney, 272 Ala. 667, 133 So.2d 673 (1961); Sutton's Music Co. v. Top Music Co., 377 So.2d 1092 Id. at 289 (emphasis added).47 Therefore, if upon default, the defen......
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...with a right to possession of property. Absent such right of possession, there can be no action based on trespass. Dollar v. McKinney, 272 Ala. 667, 133 So.2d 673 (1961); Sutton's Music Co. v. Top Music Co., 377 So.2d 1092 (Ala.Civ.App.1979). The effect of this rule is that the decedent did......
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...and there is no need to address the issue of whether ARCP governed this proceeding. In support of this holding is Dollar v. McKinney, 272 Ala. 667, 133 So.2d 673 (1961), where the factual setting is quite similar to the present case. There, we held that a judgment in favor of the plaintiff ......