Gambill v. Cooper

• Decision Date: 16 April 1908
• Citation: 159 Ala. 637,48 So. 691
• Parties: GAMBILL v. COOPER.
• Court: Alabama Supreme Court

48 So. 691

159 Ala. 637

GAMBILL v. COOPER.

Supreme Court of Alabama

April 16, 1908

Rehearing Denied Feb. 5, 1909.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Unlawful detainer by H. D. Cooper, for the use of A. E. Leishman against A. A. Gambill. From a judgment for plaintiff defendant appeals. Affirmed.

The complaint was in the following language:

Count 1: "Plaintiff sues to recover possession of the following tract of land, to wit: [Here follows a description of the land]--of which he was in possession, and upon which pending such possession, and before the commencement of this action, the defendant lawfully entered, on the demise of the plaintiff, for one year, namely, from the 1st day of October 1899, to the 30th day of September, 1900. And the plaintiff avers that as a part of the consideration for said lease the defendant promised therein that, in case the said premises were sold during said term described above, he would give possession of said house and lot, after reasonable notice had been given of said sale and that possession of the said premises was wanted. And plaintiff further avers that he sold said premises during said term to A. E. Leishman, and that the said defendant was given such a notice more than 40 days before the bringing of this suit, and more than 40 days before written demand was made for the possession of the premises, which written demand the plaintiff hereby avers was made by the plaintiff in writing before the bringing of this suit and in accordance with the statute. The plaintiff further alleges that the defendant doth continue to unlawfully detain the said premises. The plaintiff further claims $100 for the detention of said premises."

Count 2: Same as 1, down to and including the words "of September, 1900," where they occur in said first count with the following addition: "With the condition which was written in and made a part of the lease or contract of demise between the plaintiff and the defendant that the defendant, in the event the plaintiff sold the said premises, was to give possession of the same, if required to do so, within a reasonable time thereafter. And plaintiff avers that he did sell said premises during said term, on, to wit, April 20, 1900, to said A. E. Leishman, of which sale the defendant was duly notified and informed, and the defendant was duly notified and required to give possession of said premises in accordance with the terms of the said lease contract; but the defendant failed and refused to give possession of said premises within a reasonable length of time thereafter. And the plaintiff further avers that the defendant, after the termination as aforesaid of his possessory interest in and to the premises, and after the plaintiff's demand in writing therefor, which was duly made before the bringing of this suit, has unlawfully detained the said above-described premises at and before the time of the commencement of this suit, and did unlawfully detain the same for a long time thereafter. Plaintiff avers that he claims the sum of $100 for the detention of said premises, and as a penalty for damage of holding over."

Demurrers were interposed as follows: To the complaint as a whole: "(1) That the aggregate amount claimed in the several counts thereof exceeds $100, and therefore exceeds the jurisdiction of the justice of the peace, before whom the suit originated. (2) For that this suit is not properly brought in the name of a nominal plaintiff, and may not be brought in the name of one party for the use of another. (3) No sufficient cause therein is shown why a recovery should be had for the use of Leishman." To the first count of the complaint as follows: "(1) For that it does not sufficiently show the termination of defendant's possessory interest in the premises sued for before demand for the possession of same was made. (2) It does not sufficiently appear therefrom that plaintiff was entitled to the possession of said premises at the time the suit was instituted. (3) For that it does not sufficiently appear therefrom that the plaintiff demanded in writing the possession of the said premises by the defendant. (4) For that, after a sale of said premises, the demand for possession thereof should have been made by the purchaser." The same grounds were interposed to count 2.

The record shows that defendant tendered in court and asked permission and moved the court for leave to file the following plea: "The defendant, for plea to the complaint, says that on, to wit, the 18th day of October 1906, said A. E. Leishman was duly adjudged a bankrupt by the District Court of the United States for the Southern Division of the Northern District of Alabama, which had jurisdiction of the subject-matter and the parties to said proceedings. Wherefore the defendant says that this plea ought to...