Ennis v. Whitaker

• Citation: 281 Ala. 563,206 So.2d 367
• Decision Date: 11 January 1968
• Docket Number: 4 Div. 282
• Parties: Mae ENNIS v. E. T. WHITAKER.
• Court: Supreme Court of Alabama

Page 367

206 So.2d 367

281 Ala. 563

Mae ENNIS v. E. T. WHITAKER.

4 Div. 282.

Supreme Court of Alabama.

Jan. 11, 1968.

W. Perry Calhoun, Dothan, for appellant.

Lee & McInish, Dothan, for appellee.

HARWOOD, Justice.

Suit below was in the nature of ejectment. Verdict and judgment was for the defendant. The plaintiff's motion for a new trial being overruled, this appeal was perfected.

The suit involved two lots in the City of Dothan.

In brief counsel for appellant under 'Statement of the Case' has set forth some 22 numbered paragraphs, each and every one of which are mere statements of an assignment of error relied upon for reversal. This, of course, does not constitute a 'Statement of the Case.'

Under the heading 'Statement of Facts' counsel has given a meagre statement of the pleadings, and then sets forth what counsel terms 'the highlights of the testimony given by and on behalf of both the appellant and appellee.' For instance, counsel has set forth:

'6. The appellant introduced the testimony of' (here six witnesses are named) 'they each testified as to certain acts which they knew were performed on said land whether by themselves or by someone else for the appellant or her predecessor, on the land in question. See pages 50, 52, 53, 54, 56, 57, and 59 of Transcript.'

Such summary of the testimony in nowise informs us of what acts were performed.

Appellant's assignment of error No. 1, relates to the refusal of appellant's requested written charge A, which was affirmative in nature.

Under this assignment, appellant argues the sufficiency of the evidence to sustain the verdict and judgment.

A reviewing court starts with the presumption that a record contains evidence to sustain every finding of fact.

Supreme Court Rule 9 provides that:

'* * * if the insufficiency of the evidence to sustain the verdict or finding, in fact or law, is assigned, then the statement (of facts) 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.'

If this is not done, the error relative to the sufficiency of evidence is deemed waived. There being a failure to comply with Rule 9, we will not attempt to recite the facts which, in our view, justified submitting the case to the jury. Standard Oil Co. v. Johnson, 276 Ala. 578, 165 So.2d 361, and cases cited, and full discussion therein.

Further, in the trial below, three plats were received in evidence, and probably a fourth was referred to. These plats were used in examining witnesses, but it is unclear which plat was being used at the time. The testimony of the witnesses referred to 'this part,' 'this area,' 'run down here,' 'a little cut like this,' etc. The jury and the judge below saw this finger pointing. It is meaningless to us on this review. See Williams v. Davis, 280 Ala. 631, 197 So.2d 285.

The appellant having failed to comply with Supreme Court Rule 9, can take nothing by assignment of error No. 1.

Assignments of error 2, 18, 19, and 20 relate to the refusal of charges requested in writing by the plaintiff-appellant. Examination of the charges respectively made the bases of these assignments show that they are faulty in omitting the requirement that the possession upon which the claimant relies was adverse. Charges not expressed in the exact and appropriate terms of the law applicable are refused without error. W. P. Brown & Sons Lumber Co. v. Rattray, 238 Ala. 406, 192 So. 851, 129 A.L.R. 526.

Assignment of error 13 relates to the refusal of plaintiff's requested charge F. This charge attempts to set out the elements of adverse possession of ten years, but omits any reference to the alternative prerequisites of color of title, payment of taxes, or descent cast. The charge was properly refused. See Lay v. Phillips, 276 Ala. 273, 161 So.2d 477, as to requisites for creation of a bar by adverse possession for a period of ten years.

Assignment of error 14 asserts as error the refusal of plaintiff's requested charge G, which charge is to the effect that in an ejectment suit a plaintiff, without proof of documentary title, establishes a right of recovery by showing prior possession under a claim of title.

As stated in Bundy v. Echols, 239 Ala. 421, 195 So. 439:

'We, of course, recognize the general rule that ordinarily in an action of ejectment the plaintiff must recover upon the strength of his own title and not the weakness of that of the defendant, but there is another well recognized exception or rule that when neither party establishes title, the plaintiff may recover under an actual, previous possession as against a mere trespasser on the land or one claiming only under a later possession. * * *.'

In the present case both parties claimed under titles. The exception pointed out in Bundy v. Echols, supra, is not created. Charge G was therefore abstract under the evidence and properly refused.

Appellant's requested charge H was refused without error (assignment of error No. 15) in that the charge is based on the jury's reasonable belief from the evidence, rather than on being reasonably satisfied from the evidence.

It has been repeatedly held that it is not error to refuse a charge, in a civil proceeding, predicated on 'If you believe from the evidence,' the proper term being 'If you are reasonably satisfied from the evidence.' Casino Restaurant, Inc. v. McWhorter, 35 Ala.App. 332, 46 So.2d 582, and cases cited therein.

Requested charge J (assignment of error No. 17) was refused without error, the charge being elliptical.

Assignment of error No. 11 is without merit. Appellant argues that the court erred in overruling appellant's objection to a certain question propounded to the appellee on direct examination relative to the cost of a building erected on the lots in question. While the court at first overruled the objection, the court almost immediately changed its ruling and sustained the objection and the question was not answered.

Assignments of error Nos. 20 and 21 assert error in the refusal of appellant's requested charges M and N, respectively. These charges are to the effect that the defendant would not be entitled to damages for permanent improvements placed on the property after the appellee received notice from the appellant not to trespass on the said property.

The appellee tried several times to elicit testimony going to the value of improvements made by him on the property. In each instance the court sustained appellant's objections to questions seeking such testimony. There being no evidence as to the value of the improvements, charges M and N were abstract under the evidence and properly refused. Other reasons would also support the refusal of these charges, but we see no need to set these reasons out.

Assignment of error No. 5 asserts error in the action of the court in sustaining appellee's objection to...