Fletcher v. Riley

• Decision Date: 30 June 1910
• Citation: 169 Ala. 433,53 So. 816
• Parties: FLETCHER ET AL. v. RILEY.
• Court: Alabama Supreme Court

53 So. 816

169 Ala. 433

FLETCHER ET AL. v. RILEY.

Supreme Court of Alabama

June 30, 1910

Rehearing Denied Dec. 22, 1910.

Appeal from Circuit Court, Covington County; H. A. Pearce, Judge.

Ejectment by M. M. Riley against J. H. Fletcher and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Dowdell C.J., and McClellan, J., dissenting.

The judgment, so far as is necessary to be set out, is as follows: "On this day came the parties in question and by attorney, and issue being joined upon the defendants plea of not guilty, as appears of record, and his suggestion of three years adverse possession under color of title and permanent improvements thereon, thereupon came a jury of good and lawful men, to wit, J. B. Jones, foreman, and eleven others, who, being legally impaneled, charged, and sworn upon their oaths do say: 'We, the jury, find for the plaintiff for the lands sued for. We find for defendant on his suggestion of adverse possession of three years under color of title or claim of right. He assessed the value of the common improvements to be $125.00. We find the value of the land without the improvements to be $1,280.00.' It is therefore considered and adjudged by the court that the plaintiff do have and recover of the defendant the land sued for and described in the complaint as follows: [[Here follows the description.] For which let writ of possession issue upon the payment by plaintiff to the defendant the sum of $125.00 the value of the permanent improvement as fixed by the jury. It is further ordered and adjudged by the court that the plaintiff have and recover of the defendant all the costs in this behalf expended, for which let execution issue. It is further considered and adjudged by the court that, should the defendant wish to appeal this cause to the Supreme Court and wish to supersede the execution of the judgment herein, that they execute bond, with good and sufficient sureties, payable to the clerk, in the sum of $200.00, with the condition that if they fail in the appeal, they will pay such judgment as the Supreme Court may render in the premises, and all such costs and damages as any party aggrieved may sustain by reason of the wrongful appeal or suspension of the execution of the judgment." The caption of the judgment is as follows: "M. M. Riley v. J. H. Fletcher."

Foster, Samford & Prestwood and A. Whaley, for appellants.

James F. Jones and S. H. Gillis, for appellee.

McCLELLAN J.

Riley instituted statutory ejectment against J. H. Fletcher and E. B. Ammons. So far as this record shows, Fletcher alone interposed defenses in the cause. From the bill of exceptions it appears that Ammons was the tenant of Fletcher, and that Ammons suggested this fact to the court. The appeal was taken by both Fletcher and Ammons, and errors are jointly assigned by both appellants.

Counsel for appellee makes and insists upon the point that the judgment appealed from was not rendered against Ammons, but against Fletcher only, and that, hence, Ammons has nothing of which to complain, and that, accordingly, on joint assignment of error, an affirmance must result, as was expressly ruled in Barrett v. McCarty, 157 Ala. 449, 48 So. 49, and, in principle, in Beachman v. Aurora Company, 110 Ala. 555, 18 So. 314. The judgment, so far as at present important or pertinent, will be set out in the report of the appeal.

Justices SIMPSON, ANDERSON, MAYFIELD, SAYRE, and EVANS are of the opinion, and so hold, casting the decision of the question, that the judgment is against both Fletcher and Ammons, and hence that the stated rule with respect to joint assignments of error is not applicable. Chief Justice DOWDELL and the writer entertain the opinion that the judgment is against Fletcher only, and hence would hold that an affirmance should follow, from the application of the sound rule asserted for appellee.

The construction of this judgment is of sufficient importance to justify a statement of the dissenting view on this point. Both Fletcher and Ammons were sued, and service upon both was effected. Fletcher only pleaded in the cause. Ammons, the bill of exceptions shows, suggested his tenancy under Fletcher. As clearly appears from the whole transcript, apart from the judgment entry, Ammons was treated as having thereupon disappeared from the case. Fletcher himself on his examination stated, "I am the defendant." The present inquiry has no controlling factor in this apparent ignoring of Ammons as a party to the cause. There is no proper invitation here to review error of the court, if any, in thus ignoring Ammons as a party. The plaintiff is not complaining. So the sole question, in this connection, is, not what the court ought to have done, but what did the court do-- against whom did it render judgment? The omission to observe this distinction in considering the question must, obviously, lead to an unsound result.

The caption of the judgment is, "M. M. Riley v. J. H. Fletcher." In the body of the judgment the parties, plaintiff or defendant, are not specifically named. In such cases the caption, as well as the process and pleadings (if the judgment is ambiguous as to those against whom or in whose favor it concludes), may be looked to in order to ascertain the facts as to who appeared and for or against whom the judgment was rendered. Puckett v. Pope, 3 Ala. 556; Catlin, Peeples & Co. v. Gilder's Ex'rs, 3 Ala. 542; Gilbert v. Lane, 3 Port. (Ala.) 267; Wheeler v. Bullard, 6 Port. (Ala.) 352; Owings v. Binford, 80 Ala. 421. See, also, 1 Freem. on Judgments, § 155. Our more recent decision of Bolling v. Speller, 96 Ala. 269, 11 So. 300, does not conflict with the line of authority to which the citations made belong, holding that, even on the jurisdictional question of appearance, the caption may be properly considered and given weight, though, of course, not always a controlling influence. This much is said out of deference to the insistence of counsel that the caption should not be considered on the inquiry; and, as appears from many rulings here, the insistence cannot be approved.

So the caption does not include Ammons. When reference is had to the body of the judgment, the caption's accuracy and verity is demonstrated. The rule with us is that singular and...