Farley v. Bay Shell-Road Co.

• Decision Date: 03 April 1900
• Citation: 125 Ala. 184,27 So. 770
• Parties: FARLEY v. BAY SHELL-ROAD CO.
• Court: Alabama Supreme Court

27 So. 770

125 Ala. 184

FARLEY v. BAY SHELL-ROAD CO.

Supreme Court of Alabama

April 3, 1900

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Action by the Bay Shell-Road Company against Mary Farley. From a judgment for plaintiff, defendant appeals. Reversed.

The appellee, the Bay Shell-Road Company, brought the present action of forcible entry and detainer against the appellant Mary Farley, to recover possession of a tract of land specifically described in the complaint, which it claimed had been in its possession, and used by it as a part of its road. The action was commenced on January 15, 1897, before a justice of the peace of Mobile county. The justice of the peace rendered a judgment for the plaintiff, and the defendant appealed to the circuit court of Mobile county. It was shown that the plaintiff was a corporation, and that the property constituted the Bay Shell Road, near the city of Mobile, and that the defendant was the owner of a tract of land which abutted on the said Bay Shell Road. The facts stated in the bill of exceptions show that plaintiff was in possession of a road extending along the Bay of Mobile for some distance below defendant's property; that there are fences extending along the west side of the road, which fences mark the west boundary of the road; that there was such a fence dividing or separating the west side of the road from defendant's land; that in December, 1896, defendant removed her old fence, and built a new fence further out into the road, inclosing the strip of land sued for; that a surveyor was employed by plaintiff to measure the land lying between the old and the new fences; that the surveyor made the survey, and ascertained the location of the old fence by the post holes, which were visible, and by a hedge which was growing along the inside of the line formed by the post holes; that he made a map showing the line of the old fence and the line of the new fence, which map was offered in evidence; that on December 24, 1896, plaintiff served a notice on defendant to remove her fence from the strip of land which she had taken possession of, and, upon defendant's failure to remove said fence and to restore the plaintiff to possession of the property, plaintiff brought suit; that plaintiff had been in possession of said road for over 40 years, exercising acts of ownership, such as keeping the road in repair, cutting weeds, etc., up to the line of defendant's fence. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. Upon the introduction of all the evidence the defendant requested the court to give to the jury the general affirmative charge in her behalf, and duly excepted to the court's refusal to give the said charge as asked. There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Fred K G. Bromberg, for appellant.

Bestor & Gray, for appellee.

DOWDELL J.

This is an action of forcible entry and detainer, commenced before a justice of the peace by the Bay Shell Road, a corporation against the appellant.

The summons issued by the justice commands the defendant, Mary Farley, to appear and answer for a forcible entry and detainer. The complaint in the justice court contained a single count, which count is in the Code form for forcible entry and detainer. Code 1896, p. 948, form 28. The case was tried before the justice on this single count, and from a judgment rendered by the justice, finding the defendant guilty of a forcible entry and detainer, the case was carried by appeal to the circuit court. There, on the trial, the complaint, by leave of the court, but against the objection of the defendant, was amended by the plaintiff by adding a second count. The bill of exceptions recites that this amendment was made just after the counsel for the plaintiff had stated the case to the jury. The amended count is, while not in exact language of the Code form for unlawful detainer, a count for unlawful detainer. Code 1896, p. 948, form 28. It is insisted by the appellant here that this amendment was a departure from the cause of action as stated in the complaint before the justice, and therefore error in the court below to allow it against defendant's objection. While the statute of amendments (section 3331 of the Code) must be liberally construed, so that the ends of justice will be advanced, this character of construction will not cover an amendment which would work a departure from the cause of action as originally set forth in the complaint. Especially, it seems, would this be true when applied to cases on appeal from the justice court in cases where the original and exclusive jurisdiction of the cause of action is vested in the justice court by virtue of the statute. Leatherwood v. Suggs, 96 Ala. 383, 11 So. 415. This insistence of departure in this case is made by the appellant in the light of the decision made by this court in the case of Littleton v. Clayton, 77 Ala. 571, where it is held that, if the complaint before the justice is for forcible entry and detainer, a new complaint for unlawful detainer, filed in the circuit court, is not a change of the form of action, or the substitution or introduction of an entirely new cause of action. By this insistence of the appellant this court is invited to review the case of Littleton v. Clayton, and overturn it as authority. If we had any inclination to review that case, the condition of the record in the case in hand renders it entirely unnecessary to do so. In the bill of exceptions we find it stated that at the conclusion of the opening argument by the appellee's counsel to the jury on the facts, and before appellant's counsel had commenced his argument, the appellee asked for and gained the consent of the court, against appellant's objection, to make certain amendments to the second count in the complaint. The amendments are set out in the bill of exceptions, and we have no doubt about the proposition that the amendments thus made converted the second count from one of unlawful detainer to one of forcible entry and detainer, and thus the case was returned to the status held by it before the justice of the peace on the pleadings. This reason is sufficient, without assigning any other, to render the insistence unavailing to reverse the judgment of the lower court. But there is another reason why the insistence cannot prevail. To put the court in error in allowing an amendment, the amendment offered must not only be an improper one, but there must be made the specific objection which renders it improper at the time. A mere general objection will not be sufficient. The court will not be required to cast about to find the specific cause of objection. It will be discovered from an inspection of the bill of exceptions in this record that the objection by the defendant in the court below to the amendment is a general objection. Reynolds v. Dismuke, 48 Ala. 209. It results from what has been said that the court committed no error with reference to the pleadings which can prevail here.

Forcible entry and detainer is defined by our statute (section 2126, Code 1896), and this section is an exact reproduction of section 3380 of the Code of 1886. The last clause of the section defines forcible entry and detainer in the following language, viz.: "Or by entering peaceably, and then, by unlawful refusal, or by force or threats, turning or keeping the party out of possession." This clause was enacted by the legislature, and was approved on the 13th day of February, 1879. We have examined the evidence in this case as set out in the bill of exceptions, with the view of determining whether or not there could arise from it any reasonable inference of the guilt of defendant of a forcible entry and detainer, upon either category mentioned in the statute, other than the one above mentioned; and we are very clear to the conclusion that there is nothing in the evidence which would warrant such an inference, and therefore we must examine and discuss the case as made by the evidence in the court below, as gauged by the last clause of the section of the Code above recited. This action is purely possessory in its character, and there is nothing in the facts in this case to exempt it from the express provision of the statute, that "the estate or merits of the title cannot be inquired into on the trial." Code 1896, § 2135. The provisions of this statute are applicable whether on trials had in the justice court, or in the circuit court on appeal. It is true that section 2147 of the present Code provides for the removal of the cause to the circuit court on application made to the justice before judgment rendered by him, and in that event the title may be litigated in the circuit court. But this case does not come under the influence of this section of the Code. The definition of forcible entry and detainer as contained in the last clause of the statute, and what is necessary to be shown under it to authorize a recovery by the plaintiff, has undergone thorough consideration by this court in the case of Knowles v. Ogletree, 96 Ala. 555, 12 So. 397. See, also, the case of Welden v. Schlosser, 74 Ala. 355. In the case of Knowles v. Ogletree we find the law thus stated by the court, speaking through Thorington J.: "The unlawful refusal here mentioned, however, has no reference to the title. An unlawful refusal presupposes a prior lawful demand, but in order to render such demand lawful it is only necessary that a prior actual possession shall have been intruded upon by the person on whom such demand is made. It is not essential that the demand should be...