Griffin v. Fowler
Decision Date | 19 November 1918 |
Docket Number | 6 Div. 469 [*] |
Citation | 17 Ala.App. 44,81 So. 426 |
Parties | GRIFFIN v. FOWLER. |
Court | Alabama Court of Appeals |
Rehearing Denied March 18, 1919
Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.
Suit by Mrs. R.J. Fowler against Rena Griffin for damages done by stock running at large in the Town of Brighton. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
G.P Benton, of Bessemer, for appellant.
Goodwyn & Ross, of Bessemer, for appellee.
Under the provisions of section 2879 of the Code, as amended by act approved September 22, 1915, appellant, on the facts stated in her affidavit, was entitled to appeal without bond or security for costs. Acts 1915, p. 715.
This act was incorporated in section 2115 of the Code of 1896, which reads:
"If any stock trespass upon any lands inclosed as herein prescribed, or embraced in a district in which such stock is by law prohibited from running at large, the owner of such stock must pay the damages; and for each trespass after the first, double damages."
The statute was brought forward into the Code of 1907 as section 4251 in its present form.
With this statute in force, the Supreme Court, in Jones v. Hines, 157 Ala. 624, 47 So. 739, held that the owner of stock that lawfully allowed his stock to run on the commons was not liable for damages if such stock wandered into the corporate limits of the city of Gadsden, where, by ordinance stock were prohibited from running at large.
While, for these reasons, we adhere to the view that a "stock law district," within the meaning of section 4251 of the Code of 1907, is a district in which stock are by law prohibited from running at large, we are convinced that the premise assumed in disposing of the case on our first consideration is wholly untenable. In fact, appellee, in responding to the application for rehearing, says:
"There was never any ordinance in evidence showing that the town of Brighton ever attempted to make it a stock law district."
The bill of exceptions recites:
"The plaintiff then introduced in evidence an ordinance of the town of Brighton, to which the defendant objected,": etc.
But the ordinance is not set out in the bill of exceptions, nor does the bill of exceptions purport to set out all the evidence, and, under repeated rulings in this state, the refusal of charges requested by the defendant and the objection to the admission of the ordinance in evidence is not properly presented for review. Southern Railway Co. v. Kendal & Co., 14 Ala.App. 242, 69 So. 328; Southern Railway Co. v. Herron, 12 Ala.App. 415, 68 So. 531; Lamar v. King, 168 Ala. 285, 53 So. 279.
However, we hold that the complaint was subject to the objection pointed out by the fourth and tenth grounds of demurrer, and the court erred in overruling the demurrers.
Under the common law prevailing in this state, the owner of domestic animals may suffer them to run at large, and the owner of premises not properly inclosed is without remedy for injury caused to his premises or growing crops by such animals. Hurd v. Lacy, 93 Ala. 427, 9 So. 378, 30 Am.St.Rep. 61; Clear Creek Lumber Co. v. Gossom, 151 Ala. 450, 44 So. 404; Means v. Morgan, 2 Ala.App. 547, 56 So. 759; Jones v. Duncan, 4 Ala.App. 388, 58 So. 972; Wilhite v. Speakman, 79 Ala. 400.
Statutes which are in derogation of the common law are strictly construed. 4 Mayf.Dig. p. 850, § 21, and authorities there cited. And when doubt or ambiguity result from codifying a statute, the court will refer to the original enactment and give effect to its provisions as...
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...and effect. East Tennessee, V. & G. R. Co. v. Hughes, 76 Ala. 590; Jackson County v. Derrick, 117 Ala. 348, 23 So. 193; Griffin v. Fowler, 17 Ala.App. 44, 81 So. 426; Ex parte, Fowler, 203 Ala. 98, 82 So. 112. * * See, also, Hudson v. Reed, 259 Ala. 340, 342(2), 343(3), 66 So.2d 909, 911, w......
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Griffin v. Fowler
...Judge. Suit by Mrs. R.J. Fowler against Rena Griffin. Judgment for plaintiff, and defendant appeals. Reversed and remanded. See, also, 81 So. 426; 82 So. G.P. Benton, of Bessemer, for appellant. Goodwin & Ross, of Bessemer, for appellee. BROWN, P.J. The case of Joiner v. Winston, 68 Ala. 12......