Gurganus v. Kiker

• Decision Date: 10 July 1970
• Docket Number: 6 Div. 670
• Citation: 286 Ala. 442,241 So.2d 113
• Parties: David GURGANUS v. Douglas KIKER and Mable Kiker.
• Court: Alabama Supreme Court

Page 113

241 So.2d 113

286 Ala. 442

David GURGANUS v. Douglas KIKER and Mable Kiker.

6 Div. 670.

Supreme Court of Alabama.

July 10, 1970.

Rehearing Denied Nov. 12, 1970.

Skidmore, Skidmore & Crownover, Tuscaloosa, for appellant

Robert V. Wooldridge, Jr., Tuscaloosa, for appellees.

PER CURIAM.

This is a statutory ejectment suit. The complaint was filed in the Circuit Court of Tuscaloosa County on July 31, 1967, by Douglas Kiker and Mable Kiker against David Gurganus. There was a demand for a jury trial made by the plaintiff, but when the case was called for trial, the jury demand was withdrawn. Defendant's demurrers were overruled and a plea of the general issue in short by consent was filed. On January 9, 1968, the cause was tried by the court without the intervention of a jury. At the conclusion of the trial, the court took the cause under submission.

On March 22, 1968, the court issued the following:

'MEMORANDUM FOR ATTORNEYS

'After extended consideration the Court is now of the opinion that judgment in this case should be entered for the plaintiffs.

'Hon. Robert V. Wooldridge, Jr., is requested to prepare appropriate judgment which will be signed after it has been inspected by Mr. McGuire and the judgment date will be fixed at the time of signature.

'Dated this 22nd day of March, 1968.

'Submitted by Fred W. Nicol

Circuit Judge.'

We observe that appearances of counsel show Mr. Robert V. Wooldridge, Jr., on behalf of plaintiff, and Mr. Jack H. McGuire on behalf of defendant. Later, counsel, here appearing for appellant, filed in the Circuit Court a motion for a new trial.

On March 26, 1968, the formal judgment was signed and filed. The judgment was rendered in favor of plaintiffs and against the defendant for the possession of the property as described in the complaint, to wit:

'All of the portion of the NE 1/4 of SE 1/4 of Section 13, Township 17 South Thereafter, and on April 25, 1968, a motion for new trial was filed. The motion was later taken under submission, and thereafter overruled on November 22, 1968.

Range 9 West, that lies West of Alabama Highway No. 69, containing ten (10) acres, more or less.'

It is the defendant's contention in brief that the plaintiffs did not meet the burden of proof, also, that the judgment was not supported by the evidence. It is contended than no one could sue defendant after February 21, 1957, which ended the statutory period of ten years.

The plaintiffs claim title by conveyance in March, 1962. At that time, Mable Gurganus Kiker owned the land in the South half of the NE 1/4 of this section. The defendant was her father-in-law, plaintiff having married one of his sons. Following his death, she married Douglas Kiker.

The triangular strip of the land in dispute is located in the NW corner of the NE 1/4 of the SE 1/4 of the Section and is bounded on North and West by the Quarter Section lines. The eastern and southern boundary is the Alabama Highway No. 69.

Plaintiff's Exhibit #1, a map, engineered to scale, shows the area in dispute and the surrounding areas. This map was used during the trial in the examination of many of the witnesses. Plaintiff testified there was a road that 'runs from the highway over to your house.' This roadway splits the disputed strip in half.

It seems from the evidence that there was general recognition that there was some 'mix-up' on record concerning this disputed strip--due possibly to an error in the description in one of the deeds.

On direct examination of plaintiff Douglas Kiker, he testified, in part, as follows:

'Q. Now, immediately before this suit was filed, did you have any conversations with the Defendant with respect to any claim he might have to this property?

'A. Yes sir, we talked about it on numerous occasions in a friendly fashion. We never had any hard words over it I wouldn't think.

'Q. Was he claiming to own an interest in it?

'A. Yes, sir, in 1963 we had a discussion when I was building a fence around the other 40.

'Q. Just tell the Judge what transpired in that conversation.

'A. Well, Mr. Gurganus told me he had a claim to the 10 acres and at that time he asked me not to build a fence around it and I didn't and at that time he said he would like to get it settled and we both agreed we would like to get it settled and he said if we would have an abstract run, at that time, however the abstract proved out, that the one that got it would abide by it and pay for the abstract.

'Q. After that conversation did you obtain an abstract?

'A. Yes, sir.

'Q. Was the abstract made available to him?

'A. Yes, sir, I gave it to Mr. Gurganus.

'Q. Before the abstract was obtained he said whatever the abstract showed he would abide by it?

'A. Yes, sir.

'Q. If it showed your wife owned it that would be the end of it?

'A. He said he would abide by whatever the abstract said.

'Q. That was in 1963:

'A. Yes, sir.

'Q. Do you recall what time of the year in 1963 that was?

'A. It was in the fall because I planted my pasture in the fall and it was winter pasture.

'Q. In the fall of '63?

'A. As far as I can recall.

'Q. After you got the abstract, did you show it to him or make it available to him?

'A. Yes, sir.

'Q. Did you all have any further conversations concerning it?

'A. Yes, sir, he brought the abstract back. I don't know, he kept it maybe a week or two. It was quite a few days and when he brought it back he told me he had changed his mind and he would try to hold the land through possession.

'Q. He had decided to try to hold it through possession?

'A. Yes, sir.

'Q. You sure those are the words he used, that he was going to try to hold it through possession?

'A. As far as I can recall.

'Q. Is that your best judgment?

'A. Yes, sir.'

On direct examination, Plaintiff, Mable Gurganus Kiker, gave the following testimony:

'Q. Now since 1962, from the time you bought that property up until immediately sometime soon before this property was purchased, did the Respondent make any claim to you with respect to that property?

'A. My husband was going to put a fence up out there.

'Q. When was that?

'A. At the time we got the abstract. I don't remember the exact date.

'Q. About 1963?

'A. Douglas was going go (sic) build a fence and he asked him not to, that it was his, and if he would get a title or abstract he would be satisfied, and we went to Tuscaloosa Title Company and got an abstract.

'Q. He said he would abide by the abstract?

'A. He would abide by the abstract. If it was ours we would pay it, but it would be settled once and for all.

'Q. Who paid for the abstract?

'A. We did.'

We have carefully checked the testimony of the defendant, Mr. Gurganus, and cannot find a denial of either conversation with the plaintiffs. At least, it would appear that the defendant recognized the existence of an error in description that brought on the dispute of ownership.

Plaintiff's Exhibit #2 was an abstract of title covering the property in dispute and appears in the transcript.

Five witnesses testified for the plaintiff and seven for the defendant. Most of them had lived nearby for many years. On occasions, counsel would point, or refer, to the map and ask the witness something in relation thereto. As an example, we quote from Question and Answer on cross examination of the witness, defendant Gurganus, as follows:

'Q. Show me on the map what you took possession of?

'A. Up and down the road along here.

'Q. Would you point to it again, sir?

'A. This part there, along there.'

This recurred in examinations of other witnesses. While we feel certain the trial judge saw on the map or drawing where the witness indicated, there is no way the writer here, or any member of this Court, can have this information. While this map In Garrett v. Kirksey, 279 Ala. 10, 181 So.2d 80, we held:

is before the Court, it does not help in this regard.

'* * * We cannot disturb this finding based as it was on testimony taken orally before the trial court. Particularly is this true in this case where the record is full of questions and answers which obviously refer to a point on a diagram or plat. The points referred to in those questions and answers are designated in the record by nothing except the words 'here' and 'there.' Such testimony is meaningless without the pointing finger, or some additional information, to designate the particular spot on the diagram or plat intended by the witnesses. The diagram or plat which was drawn on the blackboard is not before us. The trial court could see the place on the drawing on the blackboard to which the witnesses pointed. We cannot. Consequently we cannot disturb the trial court's finding as to where the parties placed the northern line of the land to be conveyed by the Garretts. Christian v. Reed, 265 Ala. 533, 92 So.2d 881; * * *.'

We have read and studied the entire testimony. The evidence was extended as to the title and acts of possession concerning the area in litigation. Much of the evidence is denied or disputed and it is most difficult to resolve. Further discussion is not indicated.

The testimony was taken ore tenus before the trial judge, who had the witnesses before him, heard their testimony and observed their demeanor on the stand. His judgment will not be disturbed on appeal unless plainly wrong. Mangina v. Bush, et al., 286 Ala. 90, 237 So.2d 479, June 18, 1970; Kirkman v. Pittman, 269 Ala. 159, 111 So.2d 583; Aniton v. Robinson, 273 Ala. 76, 134 So.2d 764.

We cannot say that the trial court was plainly wrong in its decree.

Other assignments of error not argued in brief are not considered, Rule 9, Revised Rules of the Supreme Court, 279 Ala. XXIII; Smart v. Wambles, 271 Ala. 651, 127 So.2d 611.

We find no reversible error and the decree of the lower court is affirmed.

The foregoing opinion was prepared by J. Edgar Bowron, Supernumerary Circuit Judge, and was adopted by the Court as its opinion.

Affirmed.

LIVINGSTON, C.J., and SIMPSON, COLEMAN, BLOODWORTH...