Forrester v. McFry, 7 Div. 256.

CourtSupreme Court of Alabama
Writing for the CourtFOSTER, Justice.
PartiesFORRESTER v. McFRY.
Decision Date11 October 1934
Docket Number7 Div. 256.

157 So. 68

229 Ala. 324

FORRESTER
v.
McFRY.

7 Div. 256.

Supreme Court of Alabama

October 11, 1934


Appeal from Circuit Court, Cleburne County; W. B. Merrill, Judge.

Action in ejectment by R. W. McFry against W. B. Forrester. From a judgment for plaintiff, defendant appeals.

Reversed and remanded. [157 So. 69]

W. C. McMahan, of Heflin, and Chas. F. Douglass, of Anniston, for appellant.

Merrill, Jones & Whiteside, of Anniston, for appellee.

FOSTER, Justice.

Appellee moves to strike from the bill of exceptions certain instruments designated as exhibits to it. In the body of the bill of exceptions they are referred to and alleged to be attached and marked as Exhibits A to P, each respectively and separately. They are so marked. There is nothing to indicate that they were not so attached and marked at the time the judge approved the bill.

When the bill contains a memorandum directing the clerk to copy a certain document, the memorandum must describe the document so that it may by such description, taken by itself, be identified by one not familiar with the trial. Farmer v. Wilson, 34 Ala. 75; Garlington v. Jones, 37 Ala. 240; Tuskaloosa County v. Logan, 50 Ala. 503; Parsons v. Woodward, 73 Ala. 348; Anniston Mfg. Co. v. Southern Ry. Co., 145 Ala. 351, 40 So. 965; Fuller v. Fair, 206 Ala. 654, 91 So. 591; Jones v. White, 189 Ala. 622, 66 So. 605; Hamrick v. Albertville, 228 Ala. 666, 155 So. 87.

That is not this situation. If the document is attached when the judge signs the bill, and it is referred to as an exhibit and identified by number or letter, there is no uncertainty, and the exhibit is as much a part of the bill as if it had been copied in its body. Oregonian R. Co. v. Wright, 10 Or. 162; Legnard v. Rhoades, 156 Ill. 431, 40 N.E. 964; Rosenthal v. Wehe, 58 Wis. 621, 17 N.W. 318; Humbarger v. Humbarger, 72 Kan. 412, 83 P. 1095, 115 Am. St. Rep. 204; Leftwitch v. Lecanu, 4 Wall. 187, 18 L.Ed. 388; Louisville & N. R. Co. v. Barker, 96 Ala. 435, 11 So. 453; 4 C.J. 236.

We are aware of the fact that in Padgett v. Gulfport Fertilizer Co., 11 Ala. App. 366, 66 So. 866, the Court of Appeals has held that when exhibits are thus attached and marked, they are not sufficiently identified, but that they must be described with the same certainty as when not attached, and when there is only a direction to the clerk to copy them.

But we are not willing to extend the same requirement to an exhibit physically attached and marked as an exhibit when the judge signs it. It is all one item, becomes a part of the record, and is filed as such. That there may be opportunity to substitute other documents after it is thus signed is not in our opinion sufficient reason to strike them when no such contention is made. We [157 So. 70] have found no other case in Alabama which extends the rule as stated by the Court of Appeals, and we are not disposed to follow it.

The suit is to recover possession of land lying north of the Indian boundary line in southwest quarter of section 18, township 13, range 11, in Cleburne county. This is said to refer to the Cherokee-Creek line, and is a part of the original government survey. It extends in a southeasterly direction through the section from the northwest corner of southwest quarter. South of that line the land is divided into lettered fractions, so that C and D are in the southwest quarter of section 18, with C east of D.

Defendant filed so-called pleas. Demurrer was sustained to each of them. They undertook to have the court and jury fix a line as the true boundary line between plaintiff and defendant, alleging that the suit arises over such a dispute. The authority for such a proceeding is found in section 7457, Code.

In order to save confusion existing under prior statutes, when the duty of locating a line was cast on the sheriff, if plaintiff took a judgment, without joining issue, on a disclaimer, section 7457, Code, was so written that when defendant disclaimed, he was permitted to allege that the suit arises over a disputed boundary line, and to describe the true line. This must be done definitely as by landmarks, monuments, courses, and distances, and be more than a bare statement that it is the line surveyed by the government engineers, without identifying markers.

Defendant undertook to do this in his suggestion of disclaimer. The chief contention made in brief to uphold the...

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12 practice notes
  • Chandler v. Owens, 7 Div. 487
    • United States
    • Supreme Court of Alabama
    • February 17, 1938
    ...the bill was signed. Appellees insist this direction is insufficient as a proper identification under the authority of Forrester v. McFry, 229 Ala. 324, 157 So. 68; Fuller v. Fair, 206 Ala. 654, 91 So. 591, and should be stricken therefrom. And, if so stricken, appellees invoke the rule tha......
  • Godsey v. Anglin, 6 Div. 389
    • United States
    • Supreme Court of Alabama
    • May 13, 1954
    ...and judgment by monuments, distances and courses and not by reference to a survey, Millican v. Mintz, supra; Forrester v. McFry, 229 Ala. 324, 157 So. 68, or other extraneous facts. Hopkins v. Duggar, 204 Ala. 626(5), 87 So. In reply to the suggestion plaintiff alleged that the true locatio......
  • Golden v. Rollins, 6 Div. 807
    • United States
    • Alabama Supreme Court
    • June 20, 1957
    ...distances and courses and not by reference to a survey, Millican v. Mintz [260 Ala. 22, 68 So.2d 702], supra; Forrester v. McFry, 229 Ala. 324, 157 So. 68, or other extraneous facts. Hopkins v. Duggar, 204 Ala. 626(5), 87 So. 103.' Godsey v. Anglin, 261 Ala. 19, 21, 73 So.2d 92, In the inst......
  • Guy v. Lancaster, 6 Div. 601.
    • United States
    • Supreme Court of Alabama
    • January 22, 1948
    ...222 Ala. 27, 130 So. 537; Mixon v. Pennington, 204 Ala. 347, 85 So. 562; Smith v. Cook, 220 Ala. 338, 124 So. 898; Forrester v. McFry, 229 Ala. 324, 157 So. 68; Turner v. De Priest, 205 Ala. 313, 87 So. 370; Brantley v. Helton, 224 Ala. 93, 139 So. 283; Notes 69 A.L.R. 1433; 113 A.L.R. 422,......
  • Request a trial to view additional results
12 cases
  • Chandler v. Owens, 7 Div. 487
    • United States
    • Supreme Court of Alabama
    • February 17, 1938
    ...the bill was signed. Appellees insist this direction is insufficient as a proper identification under the authority of Forrester v. McFry, 229 Ala. 324, 157 So. 68; Fuller v. Fair, 206 Ala. 654, 91 So. 591, and should be stricken therefrom. And, if so stricken, appellees invoke the rule tha......
  • Godsey v. Anglin, 6 Div. 389
    • United States
    • Supreme Court of Alabama
    • May 13, 1954
    ...and judgment by monuments, distances and courses and not by reference to a survey, Millican v. Mintz, supra; Forrester v. McFry, 229 Ala. 324, 157 So. 68, or other extraneous facts. Hopkins v. Duggar, 204 Ala. 626(5), 87 So. In reply to the suggestion plaintiff alleged that the true locatio......
  • Golden v. Rollins, 6 Div. 807
    • United States
    • Alabama Supreme Court
    • June 20, 1957
    ...distances and courses and not by reference to a survey, Millican v. Mintz [260 Ala. 22, 68 So.2d 702], supra; Forrester v. McFry, 229 Ala. 324, 157 So. 68, or other extraneous facts. Hopkins v. Duggar, 204 Ala. 626(5), 87 So. 103.' Godsey v. Anglin, 261 Ala. 19, 21, 73 So.2d 92, In the inst......
  • Guy v. Lancaster, 6 Div. 601.
    • United States
    • Supreme Court of Alabama
    • January 22, 1948
    ...222 Ala. 27, 130 So. 537; Mixon v. Pennington, 204 Ala. 347, 85 So. 562; Smith v. Cook, 220 Ala. 338, 124 So. 898; Forrester v. McFry, 229 Ala. 324, 157 So. 68; Turner v. De Priest, 205 Ala. 313, 87 So. 370; Brantley v. Helton, 224 Ala. 93, 139 So. 283; Notes 69 A.L.R. 1433; 113 A.L.R. 422,......
  • Request a trial to view additional results

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