Fowler v. Prichard
Decision Date | 14 June 1906 |
Citation | 41 So. 667,148 Ala. 261 |
Parties | FOWLER ET AL. v. PRICHARD ET AL. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.
"To be officially reported."
Action by Laura Fowler and others against Irene Prichard and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.
This was an action of forcible entry and detainer begun in the justice court by appellants against appellees. The defendants in the justice court filed their petitions and affidavits as required by sections 2147, 2148, Code 1896, and thereupon the cause was removed to the circuit court. The plaintiff made a motion in the circuit court to try first the issue as to whether or not the entry was made upon the premises by the defendant by force. The court overruled this motion and required the trial to proceed as in an action in the nature of ejectment. A great many assignments of error were based upon the introduction of evidence. The first assignment of error relates to the refusal of the court to permit the introduction of the return on the notice to quit of the bailiff as to Mrs. Loretta Fowler, one of the defendants. The evidence shows that notice was served on the other two defendants, but the bailiff did not know whether service was perfected on Mrs. Fowler or not, but testified that it was on some lady. George Norris testified that the day after the defendant moved on the premises he went there to see Mrs Pritchett, and found a chain around the top of the gate. Defendants objected to the conversation between Norris and Broadus. Plaintiffs stated to the court that they expected to show by this conversation that this man Broadus was a guard retaining the property by force under the authority of the defendants. The court sustained the objection and excluded the testimony. Mrs. Loretta Fowler, testifying, said that she was a daughter of John P. Fowler, and that he was living in 1888 on the place in controversy and became paralyzed. She was asked by defendants' counsel what was the condition of his mind at that time. Plaintiffs' counsel objected to the question and to the entering into the question of the insanity of John Fowler at this time, because it relates rather to the issue concerning the title of the parties than the possession, and is therefore irrelevant, incompetent, and immaterial. The other facts sufficiently appear in the opinion.
The plaintiffs requested the following written charges, which the court declined to give: (3) General affirmative charge. As to this charge the court marked the same "Given," but inadvertently handed the same to the clerk with the refused charges, telling the clerk that these were refused charges, which the clerk put in an envelope and filed away, and the same was never given to the jury. Plaintiff's counsel was ignorant of the fact that this charge was marked "Given," and reserved an exception to the court's action in refusing to give the same to the jury.
The court, at the request of the defendant, gave the following written charges:
R. W. Stoutz, for appellants.
L. H. & E. W. Faith, for appellees.
This was originally an action before a justice of the peace, brought by the appellants against the appellees for forcible entry and detainer and unlawful detainer. The defendants (appellees) filed their petition in accordance with section 2147 of the Code of 1896, and the case was removed to the circuit court.
The first assignment of error insisted upon is that the court erred in overruling a motion made in the circuit court by the plaintiff to try first the issue made up as to whether the entry of the defendants upon the lands sued for was by force "before any inquiry is had * * * as to the respective strength of the legal title of the plaintiffs or defendants." Section 2147 gives the defendant the right to have the case removed to the circuit...
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