Fearn v. Beirne

• Decision Date: 20 December 1900
• Citation: 29 So. 558,129 Ala. 435
• Parties: FEARN ET AL. v. BEIRNE.
• Court: Alabama Supreme Court

29 So. 558

129 Ala. 435

FEARN ET AL. v. BEIRNE.

Supreme Court of Alabama

December 20, 1900

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

Forcible entry and detainer by Edward Beirne against Ann Fearn and another. From a judgment in favor of plaintiff, defendants appeal. Reversed.

This was an action of forcible entry and unlawful detainer brought by the appellee, Edward Beirne, against the appellants, Ann Fearn and Lee Fearn, for the recovery of the possession of a certain house and lot in the city of Huntsville. The suit was commenced before a justice of the peace on June 25, 1898. On the 28th of June, the defendants in said suit obtained an order for the removal of said cause to the circuit court of Madison county, in accordance with the provisions of the statute relating thereto (Code, §§ 2147-2149). The order of removal was issued upon a petition addressed to the judge of the Eighth judicial circuit, which alleged among other things "that the defendants in said suit entered upon the lands sued for peaceably and under claim of title."

On the trial, the undisputed evidence showed that the property sued for was occupied by one Edward Littlepage, as a homestead long prior to, and at the time of his death, which occurred about 1887. It further appeared that, after the death of said Littlepage, the said premises were occupied by his widow Mariah Littlepage, until her death, in March, 1897. After the death of the said Mariah, the premises remained vacant until plaintiff entered and took possession some time in June 1897. Plaintiff had previously qualified as the administrator of the estate of the said Edward Littlepage, and when he went to take possession he found the house unoccupied, and no one on the premises except one Connally, a carpenter, who was putting some repairs on the house. He demanded the keys of said Connally, who refused to surrender them, saying that he had been employed to do the work by defendants, and could deliver the keys to no one else. Plaintiff then sent word to defendants by said Connally that he demanded the keys, and the possession of the premises. This message was delivered to defendants, and the keys were brought and turned over to plaintiff by a member of defendants' family. Having thus acquired possession of the premises, plaintiff rented the same to Archie Leslie and Fannie Duncan; and while these tenants were so in possession, an action of forcible entry and detainer was brought against them by Ann Fearn, one of the defendants, and resulted in a judgment for the said Leslie and Duncan. The said Ann Fearn then instituted an action of ejectment against these same parties, which was pending at the time of their entering upon the premises, and afterwards dismissed on her motion. The said tenants of plaintiff occupied the house for several months, and then moved out, leaving the same temporarily vacant, and while thus vacant, the defendants moved in and took possession.

There was conflict in the evidence as to the manner of taking possession by defendants. The evidence on the part of the plaintiff in the court below tended to show that this possession was forcibly taken. There was evidence tending to show that plaintiff's tenants moved out on Saturday, and that he had rented the house to one Erskine, who was to take possession the following Tuesday; that plaintiff was on the premises Sunday, and found all the doors and windows securely fastened; that the keys to the ouster doors were in the possession of one Susie Pope, a niece of plaintiff, who still had them at the time of the trial; that Ann Fearn was seen early Monday morning, sitting on the porch of the house and that she tried to take the keys by force, from Jackson Pope who had gone there for the purpose of getting some shingles from the smoke house; that the next seen of defendants, they were in the house, and the locks on the doors were broken. On the other hand, the testimony of the defendants themselves, and members of their family, was to the effect that they entered upon the premises peaceably; that they broke on doors, locks, or other outside fastenings. But they admit that they bought new locks for all the doors. There was also evidence that after the taking of possession by defendants there were several arrests on both sides for trespass after warning. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

The cause was tried by the court without the intervention of a jury, and upon the hearing of all the evidence, the court rendered judgment in favor of the plaintiff, to the rendition of which judgment the defendants duly excepted. The defendants appeal and assign as error the rulings of the trial court upon the evidence and the rendition of judgment in favor of the plaintiff.

S. S. Pleasants and Douglass Taylor, for appellants.

Grayson & Foster, for appellee.

HARALSON J.

1. Under section 2 of the act of 1895, entitled "An act to regulate the practice and proceedings in civil cases in the circuit courts of Morgan and Madison counties" (Acts 1894-95, p. 586), it is provided, that "in all cases whether commenced by summons and complaint, attachment or otherwise, the issues and questions of fact shall be tried by the court without the intervention of a jury, unless the jury be demanded by the plaintiff" or defendant in the manner specially prescribed in either case. Section 5 of the act provides, that "in the trial of any cause at law without a jury, in addition to the questions which may be presented to the supreme court for review, under existing laws and rules of court, either party may by bill of exceptions, also present for review the conclusions and judgment of the court upon the evidence," etc.

Section 6 of the act provides that "nothing in this act shall be so construed as to prevent the court from trying cases without a jury at any regular term in any case in which a jury is waived." This last section manifestly refers to trial of causes without a jury on waiver of such trial by the parties, under the general law, without reference to such waiver under this special statute. Code, § 3319 et seq., provides for this waiver, in stating, that "an issue of fact in a civil case may be tried and determined by the court without the intervention of a jury, whenever the parties, or their attorneys of record, file an agreement in writing with the clerk waiving a jury; and in such case, the finding of the court upon the facts shall have the same effect as the verdict of a jury." It is not pretended that any such an agreement for a waiver of a jury trial was entered into and filed as here provided. It must be held, therefore, that the cause was tried by the court, under the provisions of said special statute. Moreover, the judgment entry supports this conclusion in reciting, that "the cause coming on for trial and no jury being demanded, the cause was submitted to the court," etc.; a very proper recital to be made under section 2 of said special act, providing for the waiver of jury and the manner in which it shall be waived.

2. The action was for forcible entry and unlawful detainer commenced in a justice court by the appellee, Edward Beirne, as plaintiff,...