Dollar v. McKinney, 7 Div. 380

CourtSupreme Court of Alabama
Writing for the CourtLAWSON
Citation267 Ala. 627,103 So.2d 785
Docket Number7 Div. 380
Decision Date29 May 1958
PartiesW. L. DOLLAR et al. v. Audrey S. McKINNEY.

Page 785

103 So.2d 785
267 Ala. 627
W. L. DOLLAR et al.
v.
Audrey S. McKINNEY.
7 Div. 380.
Supreme Court of Alabama.
May 29, 1958.
Rehearing Denied June 26, 1958.

Page 786

This charge was refused to defendants:

'6. Court charges the jury that if from the evidence you are reasonably

Page 787

satisfied that defendants were in possession of the lands complained of by plaintiff then and in that event you cannot find for plaintiff.'

[267 Ala. 629] J. J. Cockrell, Birmingham, for appellants.

[267 Ala. 630] Geo. W. Hodges, Jr., Ashville, and Starnes & Holladay, Pell City, for appellee.

LAWSON, Justice.

This suit was filed in the circuit court of St. Clair County, northern division, by Mrs. Audrey S. McKinney against W. L. Dollar, Lonnie Nick Dollar, George Crowe and G. W. Crowe.

The purpose of the suit is to recover damages for the cutting of certain timber by the defendants on lands claimed by plaintiff.

The case went to the jury on an amended complaint containing counts in trespass to realty, trespass to personalty, trover, and for the statutory penalty for cutting trees and on the defendants' plea of the general issue is short by consent.

There was a jury verdict in favor of plaintiff in the amount of $400. Judgment was in accord with the verdict. The defendants' motion for new trial was overruled.

Certificate of appeal was filed in this court on August 17, 1957. The cause was submitted here on February 7, 1958. Submission was had on the merits and on motion of the appellee, Mrs. Audrey McKinney, to dismiss the appeal.

Motion to Dismiss Appeal.

All of the grounds of the motion to dismiss the appeal are to he effect that it was not properly perfected in that none of the defendants below signed the appeal bond.

The appeal bond, the citation of appeal, and the certificate of the register all state that the defendants below took the appeal and there is nothing in the record to indicate to the contrary. The appeal bond need not be signed by the parties appellant. All that is necessary is security for the costs. McKinstry v. Thomas, 258 Ala. 690, 64 So.2d 808, and authorities cited. That requirement was met.

The motion to dismiss the appeal is without merit and is due to be and will be overruled. It is so ordered.

On the Merits.

Reversible error is not made to appear in connection with the trial court's action in refusing the affirmative instructions requested by the defendants below.

In actions for trespass and for statutory penalty for cutting trees, ownership or title may be inquired into. Aldrich Mining Co. v. Pearce, 169 Ala. 161, 52 So. 911.

Trover has been said not to be a proper form of action to try title to land. Aldrich Mining Co. v. Pearce, supra; Granade v. United States Lumber & Cotton Co., 224 Ala. 185, 139 So. 409. Cf. Williams v. Lyon, 181 Ala. 531, 61 So. 299. But the principle is well supported that constructive possession of land resulting from legal title is sufficient to support an action for conversion of timber thereon where the person severing and converting the timber was not in adverse possession at the time of severance. Landrum v. Davidson, 252 Ala. 125, 39 So.2d 662, and cases cited; Granade v. United States Lumber & Cotton Co., supra; White v. Yawkey, 108 Ala. 270, 19 So. 360, 32 L.R.A. 199. See Ford v. Bradford, 218 Ala. 62, 117 So. 429, where the real issue was a boundary dispute and counts in trespass and trover were joined with a count claiming the statutory penalty.

Admittedly a number of trees were cut and removed by the defendants George Crowe and G. W. Crowe under the direction and authorization of the defendants [267 Ala. 631] W. L. Dollar and Lonnie Nick Dollar from

Page 788

lands belonging to either the plaintiff or the defendant W. L. Dollar, who are coterminus landowners.

The plaintiff offered evidence going to show record title to the strip of land from which the trees were cut. The defendants presented testimony tending to show that the defendant W. L. Dollar had acquired that strip by adverse possession and the case was tried by the court and the parties as presenting the issue of adverse possession. See Upton v. Read, 256 Ala. 593, 56 So.2d 644. However, the evidence in regard to possession was in conflict and a jury question was presented as to whether the trees which were cut belonged to the plaintiff or to the defendant W. L. Dollar. See Dawsey v. Newton, 244 Ala. 661, 15 So.2d 271. We are not going to undertake to set out the testimony of the several witnesses who gave testimony concerning the so-called agreed line. The record is in such shape that we could not do so to any degree of accuracy. The witnesses were examined in connection with two blackboard drawings. Copies of those drawings have been included in the record by agreement, but they are of very little benefit to us, for witnesses were continually examined concerning points on the maps which we are unable to identify.

Perhaps we should repeat the oftstated rule that in considering the action of the trial court in refusing an affirmative instruction requested by a defendant, we review the evidence in the light most favorable to the plaintiff, regardless of any view we may have as to its weight, and we must allow such reasonable inferences as the jury was free to draw, not inferences which we may think the more probable. Lindsey v. Barton, 260 Ala. 419, 70 So.2d 633; Atlantic Coast Line R. Co. v. McMoy, 261 Ala. 66, 73 So.2d 85.

But aside from what we have said above in approval of the trial court's action in refusing the several affirmative instructions requested by the defendants, there is yet another reason why we could not reverse for such refusal. These charges are all in bad form and for that reason if for no other, were refused without error. Each of the charges concludes with a direction to 'find the issues in fovor of the defendant' under the separate count in reference to which the charge was framed. For instance, the defendants' refused Charge No. 1 reads: '1. Court charges the jury that if you believe the evidence in this case it would be your duty to find the issues in favor of the defendant under County One of the Complaint as last amended.' Identical charges were requested and refused as to the other four counts of the complaint.

It has long been settled by our decisions that where a complaint contains several counts, special requested written charges which direct the jury if they believe the evidence they should find for the defendant on one or the other of said counts, are properly refused. Crocker v. Lee, 261 Ala. 439, 74 So.2d 429; Railway Express Agency v. Burns, 255 Ala. 557, 52 So.2d 177; Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So.2d 212; Christian Benevolent Burial Ass'n v. Huff, 241 Ala. 119, 1 So.2d 390; Rhodes-Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247; Southern R. Co. v. Alsobrook, 223 Ala. 540, 137 So. 437; Morgan-Hill Paving Co. v. Thomas, 223 Ala. 88, 134 So. 480; South Central Tel. Co. v. Corr, 220 Ala. 127, 124 So. 294; May v. Draper, 214 Ala. 324, 107 So. 862;...

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34 practice notes
  • Fuller v. State, 6 Div. 917
    • United States
    • Supreme Court of Alabama
    • 12 Febrero 1959
    ...convinced that his ruling in this regard is so unjust as to work a reversal. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785; Mintz v. Millican, 266 Ala. 479, 97 So.2d 769; [269 Ala. 334] State v. Carter, 267 Ala. 347, 101 So.2d Appellant's Propositio......
  • Johnson Pub. Co. v. Davis, 3 Div. 877
    • United States
    • Supreme Court of Alabama
    • 18 Agosto 1960
    ...abuse of discretion has been shown. American Rubber Corp. v. Jolley, 260 Ala. 600, 72 So.2d 102, 67 A.L.R.2d 489; Dollar v. McKinney, 267 Ala. 627, 103 So.2d Appellant contends that it should have had the continuance because of the 'condition' of the publisher, John H. Johnson, but the reco......
  • Thompson v. Odom, 1 Div. 70
    • United States
    • Supreme Court of Alabama
    • 3 Marzo 1966
    ...to the sound judicial discretion of the trial court and its refusal is not reviewable except for gross abuse. Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785. The record in this case does not, in our opinion, show a gross abuse of the judicial discretion of the trial The remaining argued as......
  • Rushing v. Hooper-McDonald, Inc., HOOPER-M
    • United States
    • Supreme Court of Alabama
    • 5 Septiembre 1974
    ...immediately before and after trespass, citing [293 Ala. 61] Hammond v. Stephens, 269 Ala. 210, 112 So.2d 324 (1959); Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785 (1958); McCall v. Busey, 244 Ala. 162, 12 So.2d 401 (1943); and Lee v. Gidley, 252 Ala. 156, 40 So.2d 80 In this case the plai......
  • Request a trial to view additional results
35 cases
  • Fuller v. State, 6 Div. 917
    • United States
    • Supreme Court of Alabama
    • 12 Febrero 1959
    ...convinced that his ruling in this regard is so unjust as to work a reversal. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785; Mintz v. Millican, 266 Ala. 479, 97 So.2d 769; [269 Ala. 334] State v. Carter, 267 Ala. 347, 101 So.2d Appellant's Propositio......
  • Johnson Pub. Co. v. Davis, 3 Div. 877
    • United States
    • Supreme Court of Alabama
    • 18 Agosto 1960
    ...abuse of discretion has been shown. American Rubber Corp. v. Jolley, 260 Ala. 600, 72 So.2d 102, 67 A.L.R.2d 489; Dollar v. McKinney, 267 Ala. 627, 103 So.2d Appellant contends that it should have had the continuance because of the 'condition' of the publisher, John H. Johnson, but the reco......
  • Thompson v. Odom, 1 Div. 70
    • United States
    • Supreme Court of Alabama
    • 3 Marzo 1966
    ...to the sound judicial discretion of the trial court and its refusal is not reviewable except for gross abuse. Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785. The record in this case does not, in our opinion, show a gross abuse of the judicial discretion of the trial The remaining argued as......
  • Rushing v. Hooper-McDonald, Inc., HOOPER-M
    • United States
    • Supreme Court of Alabama
    • 5 Septiembre 1974
    ...immediately before and after trespass, citing [293 Ala. 61] Hammond v. Stephens, 269 Ala. 210, 112 So.2d 324 (1959); Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785 (1958); McCall v. Busey, 244 Ala. 162, 12 So.2d 401 (1943); and Lee v. Gidley, 252 Ala. 156, 40 So.2d 80 In this case the plai......
  • Request a trial to view additional results

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