Hamilton v. Griffin

• Decision Date: 08 June 1899
• Citation: 26 So. 243,123 Ala. 600
• Parties: HAMILTON v. GRIFFIN.
• Court: Alabama Supreme Court

26 So. 243

123 Ala. 600

HAMILTON v. GRIFFIN.

Supreme Court of Alabama

June 8, 1899

Appeal from circuit court, St. Clair county; George E. Brewer Judge.

Action by W. W. Griffin against N. O. Hamilton. Judgment for plaintiff. Defendant appeals. Reversed.

This was an action brought by the appellee, W. W. Griffin, against the appellant, N. O. Hamilton, in which the plaintiff sought to recover the statutory penalty for the defendant cutting trees on certain lands alleged to be the property of the plaintiff, and described as the "northwest quarter of section 17, township 15, range 5 east, in St. Clair county Alabama." The defendant pleaded the general issue and the plea of set-off, the substance of which is stated in the opinion. To this plea of set-off the plaintiff demurred upon the following grounds: (1) Said plea is not responsive to the complaint, in that it seeks to set off a debt against a statutory penalty. (2) A judgment in a justice court cannot be set off against a cause of action in the circuit court. This demurrer was sustained, and the plaintiff duly excepted. On the trial of the cause the plaintiff, as a witness in his own behalf, testified that he was the adopted son of Jacob W Griffin, deceased, and introduced evidence tending to show that he inherited the lands described in the complaint from his said adopted father, and that while he was in possession of said lands the defendant cut the trees from said land, as complained of. The other facts of the case are sufficiently stated in the opinion. The court, in its general charge to the jury, instructed them, among other things, as follows "That if they believe from the evidence that the defendant willfully and knowingly, and without the consent of the plaintiff, after the 18th day of February, 1896, and prior to the commencement of this suit, cut down pine trees on the north half of the northwest fourth of section 17, township 15, range 5 east, in St. Clair county, that the plaintiff was then the owner thereof, then the jury must find for the plaintiff as to that portion of the land mentioned in the complaint, and assess plaintiff's damages at ten dollars for each pine tree or sapling the evidence [shows] that defendant had so cut on said land. That if the jury further find from the evidence that the defendant willfully and knowingly, and without the consent of plaintiff, cut down pine trees or pine saplings on the northwest fourth of the southwest fourth of said section 17 after the 18th day of February, and prior to the 9th day of March, 1896, then the jury must find for the plaintiff as to that portion of the land mentioned in the complaint, and assess plaintiff's damages at ten dollars for each pine tree the evidence showed that defendant had so cut on said portion of the said lands." The defendant excepted to that part of the oral charge of the court as above set out, which instructed the jury that they were authorized to find for plaintiff for any trees which the evidence might show that defendant had cut on the N.W. 1/4 of the S.W. 1/4 of said section 17, township 15, range 5 E. The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The court charges the jury that under all the evidence in this case the plaintiff is not entitled to recover for any trees which defendant may have cut or removed from the northwest quarter of the southwest quarter of section 17, township 15, range 5, as described in the complaint." (2) "If the jury believe all the evidence in the case, they must find for the defendant as to the north half of northwest fourth of section 17, township 15, range 5 east." There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

M. M. Smith, for appellant.

Inzer & Greene, for appellee.

DOWDELL J.

This was an action by appellee against appellant to recover the statutory penalty for the alleged cutting by the appellant of certain trees on appellee's land. Among other defenses set up by the defendant in the court below, he pleaded as a set-off to plaintiff's action a subsisting judgment in his favor against plaintiff in a justice court. To this plea a demurrer was sustained by ...