Greenfield v. Powell

• Decision Date: 16 January 1930
• Docket Number: 5 Div. 45.
• Citation: 220 Ala. 690,127 So. 171
• Parties: GREENFIELD ET AL. v. POWELL.
• Court: Alabama Supreme Court

127 So. 171

220 Ala. 690

GREENFIELD ET AL. v. POWELL.

5 Div. 45.

Supreme Court of Alabama

January 16, 1930

Rehearing Denied April 3, 1930.

Appeal from Circuit Court, Macon County; W. B. Bowling, Judge.

Action in ejectment and trover by Collins Powell against A. D Greenfield and J. S. Waterman, individually and as partners doing business as Chehaw Sand, Gravel & Manufacturing Company. From a judgment for plaintiff, defendants appeal.

Affirmed.

Denson & Denson, of Opelika, for appellants.

Ball &amp Ball, of Montgomery, and C. A. De Bardeleben, of Tuskegee for appellee.

FOSTER J.

The judgment was in favor of plaintiff for the recovery of land on a count in statutory ejectment, and for damages for the conversion of sand and gravel taken from the land on a count in trover. In taking an appeal to this court, defendant executed a supersedeas bond, with penalty equal to more than double the amount of the moneyed judgment conditioned to prosecute the appeal to effect and "pay such judgment as the Supreme Court may render in the premises." At that time there was no bond or other obligation filed which was expressly conditioned to pay the costs of appeal. On the day of the submission of the case, such a bond was filed in this court.

Motion to dismiss the appeal is made because no security for costs of appeal was given within six months, as required by sections 6127 and 6131, Code. It will be noted that the judgment is both for the recovery of land and for money. The supersedeas bond only suspends collection of the money as authorized by section 6133. It is properly conditioned to supersede the judgment for money, but not for the possession of land. It is claimed that such a supersedeas bond so conditioned does not secure the costs of appeal, and appellee has, therefore, moved to dismiss the appeal. A supersedeas bond, so conditioned, was considered by this court in Hughes v. Hatchett, 55 Ala. 539. In that case it was held that the bond did not have the effect to supersede the judgment because in that case it was not a moneyed judgment, and therefore the court said that "Upon a bond so given, this court can render no judgment against the sureties, except for costs." Steele v. Tutwiler, 63 Ala. 368. The Supreme Court, on appeal, uniformly renders a judgment for the costs of appeal. Therefore, if appellant fails to prosecute the appeal to effect, and this court renders judgment against him for the costs of appeal, and he fails to pay such costs, the condition of the bond is breached. Therefore, upon a bond so conditioned, this court has the power, if it affirms the case on appeal and taxes appellant with the costs of appeal, to render a judgment against the sureties on the supersedeas bond for such costs of appeal. Code, § 6153. We do not find it necessary to consider the effect of the bond for costs filed on the date of submission. For the reasons stated, we are constrained to overrule the motion to dismiss the appeal.

On the former appeal of this case, 218 Ala. 397, 118 So. 556, this court referred to the principles of law controlling the effect of a change in the course of a stream as the boundary line between adjoining proprietors. On this appeal, counsel seem to think that the case of Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 397, 36 L.Ed. 186, is somewhat more favorable to appellant in its statement of the principles than those expressed on former appeal. But we do not so interpret that opinion. It shows distinctly that a change of the channel caused by a gradual imperceptible process of accretion has the effect of changing the boundary line with such changes of the stream. But not so when the change is sudden and perceptible, by a condition which, by the authorities, is termed avulsion. There are expressions in the case of Nebraska v. Iowa, supra, which may cause some confusion unless care is had in observing them. The case has reference to the Missouri river, and the sudden and perceptible breaking off of large heaps of earth from the bank on one side, which disintegrate and make the waters proverbially muddy, but its particles are carried off in the stream. It is stated to be true that if the channel "suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary. *** This...