Ford v. Bradford

• Citation: 218 Ala. 62,117 So. 429
• Decision Date: 07 June 1928
• Docket Number: 7 Div. 738
• Parties: FORD v. BRADFORD.
• Court: Supreme Court of Alabama

117 So. 429

218 Ala. 62

FORD v. BRADFORD.

7 Div. 738

Supreme Court of Alabama

June 7, 1928

Rehearing Denied June 28, 1928

Appeal from Circuit Court, Clay County; E.S. Lyman, Judge.

Action for damages by A.C. Ford against J.F. Bradford for unlawful cutting and removal of trees. From a judgment for defendant rendered on appeal from justice court, plaintiff appeals. Affirmed.

Walter S. Smith, of Lineville, for appellant.

Hardegree & Cockrell, of Ashland, for appellee.

SOMERVILLE J.

This suit was begun in a justice's court in 1921 to recover damages for the unlawful cutting and removal of ten trees from land claimed to be the property of the plaintiff.

The original complaint consisted of three counts, one for the statutory penalty under section 10371 of the Code; one for trespass by "wrongfully cutting and removing" the logs; and one for the conversion of the logs. In the circuit court several common counts were added.

The justice rendered judgment for the plaintiff for $20.10, and the defendant appealed to the circuit court. Three jury trials have been had in that court, and three verdicts and judgments have been rendered for the defendant; the first two having been reversed by this court on successive appeals. Ford v. Bradford, 210 Ala. 48, 97 So. 55; Ford v. Bradford, 212 Ala. 515, 103 So. 549.

It might be reasonably supposed that most of the questions of law and evidence arising in this case had been conclusively settled on the former trials and appeals. On the contrary where one point has been settled, two or three new ones seem to have cropped out in its stead, and the record now exhibits 82 assignments of error, of which about 60 are for rulings on the evidence--which goes to show that controversial fecundity in litigation does not depend upon the size or importance of its subject-matter.

On the appeal from the judgment of the justice's court defendant gave a bond in the sum of $58.60, which was in double the amount of the judgment and costs. Before the third trial was had, plaintiff showed to the court that the costs had, since the appeal, been increased to $336, and moved that defendant be required to give a new or additional bond for the protection of plaintiff and the officers of the court. This motion was properly overruled. Section 8783, authorizing the appellate court to dismiss the appeal when the appeal bond is insufficient as security, if the party is unwilling to execute a sufficient bond, relates to its sufficiency with respect to the judgment in the lower court which is superseded by the appeal. It has nothing to do with costs subsequently accruing in the appellate court. If the bond was sufficient in amount when made--and that is not disputed--the trial court was without authority to require further security for costs in the circuit court. Giddens v. Rutledge, 146 Ala. 232, 40 So. 759.

Under count 1 plaintiff could not recover, unless defendant cut and removed the trees in question "willfully and knowingly, without the consent of the owner of the land." Code, § 10371. The cutting and removal were undisputed facts, and the issue tried was (1) whether the land from which the trees were cut belonged to plaintiff; and (2) if so, were they cut and removed by defendant under a bona fide belief that the land belonged to him and not to plaintiff. Ledbetter v. Bryant, 205 Ala. 77, 87 So. 325; Ellard v. Goodall, 204 Ala. 645 (7), (8), 87 So. 196. The dispute here was upon the true location of the boundary line between the land of defendant on the north and of plaintiff on the south. On the broad issue of good faith, defendant was entitled to put in evidence every fact having a logical tendency to induce and establish his honest belief in the fact that the trees in question grew on his side of the boundary line, however incompetent it may have been upon the issue of ownership, or upon the issues arising under the counts for trespass and trover. Ellard v. Goodall, supra, headnote 8.

The rulings on the evidence assigned for error are too numerous, and most of them of too trifling importance, to justify their detailed discussion. Some of the matters admitted against plaintiff's objection, though irrelevant, were utterly harmless; and most of the matters excluded on defendant's objection were either irrelevant or were objectionable as conclusions of the witness. For example, it was not competent for defendant's witness to testify that a change in the boundary line by the last survey was what caused this dispute; or that moving a related section corner 185 yards would disturb all the land lines in the section.

There was no dispute as to where defendant claimed the line to be, and the fact that this, that, or the other person pointed out the line, as claimed by defendant, could not have been prejudicial to plaintiff. Nor was it of any consequence whether a neighboring landowner, Coleman Smith, was present with Surveyor Currie when he ran the line which plaintiff claims is correct; or that Smith placed a marker at the end of Currie's survey; or that he pointed out to Surveyor Horn, who ran the line which defendant claims is correct, a place where Currie's survey through the section went to; or that he measured nearby lands not involved in this suit.

A number of questions were asked Coleman Smith by defendant designed to show that the half section line dividing his land and other land just to the north of the line from defendant's land and other land to the south of that line had a definite location, and had remained unchanged for the last 25 years. The location of that line--a government survey line--was...