Harn v. Common Council of Dadeville

• Decision Date: 16 November 1893
• Citation: 100 Ala. 199,14 So. 9
• Parties: HAM ET AL. v. COMMON COUNCIL OF DADEVILLE.
• Court: Alabama Supreme Court

14 So. 9

100 Ala. 199

HAM ET AL. v. COMMON COUNCIL OF DADEVILLE.

Supreme Court of Alabama

November 16, 1893

Appeal from chancery court, Tallapoosa county; S. K. McSpadden Chancellor.

Bill by the common council of Dadeville against J. H. Ham and others to compel defendants to remove a dwelling house and fence which are alleged to obstruct a street of such town. From a decree for plaintiff, defendants appeal. Reversed and remanded.

John A Terrell, for appellants.

Henry A. Garrett, for appellee.

COLEMAN J.

The bill was filed by the common council of Dadeville for the purpose of having a dwelling house and fence removed, which the bill avers obstructed and closed up a street of the town of Dadeville, known as "Eufaula Street." The bill avers "that the plan of said town was originally laid off about the 28th of April, 1836, *** and that said plan or diagram, as thus laid out, showed the different lots, blocks and streets, and was deposited in the probate office at Dadeville." It further avers "that a great many, if not all, of the lots as originally laid out in the plan by John H. Broadnax, on the 28th day of April, 1836, were sold off to different parties by lots and blocks as designated in the survey." It also avers that Eufaula street was one of the original streets as shown by the survey, and that certain lots and blocks adjacent to Eufaula street were sold and purchased as designated on said map and survey. The general averments of the bill give it equity, and are sufficient in all matters sought to be reached by the several grounds of demurrer assigned against it. The bill does not aver when the town of Dadeville was incorporated; neither does it aver, except by implication, that Eufaula street where obstructed, is within the corporate limits of the town. An act of incorporation may not be necessary to an absolute dedication to the public, but it should appear that the town has authority to file the present bill. The bill is defective, perhaps, in not averring with sufficient clearness that John H. Broadnax owned the land, and had authority to make the dedication; but it was not objected to on this account. The record is imperfect in many respects, and we are satisfied from written arguments of counsel on both sides and the note of testimony, that there was material evidence before the chancellor which does not appear in the record. Objections to interrogatories also appear in the record, but it is impossible to tell which set of interrogatories are referred to, or to which of the witnesses the interrogatories objected to were propounded. The chancellor overruled objection to evidence "filed July 26, 1892," but there is nothing in the record to indicate the evidence filed of that date. There is in the note of submission a narration of some facts which, from the note, we presume were testified to by the probate judge, and also by one H. A. Garrett; and in the note of testimony there are, among others, objections "to a map offered in evidence by complainant," and also an objection to the "oral testimony of J. H. Johnson and the oral testimony of H. A. Garrett." There is no oral testimony of J. H. Johnson and none of H. A. Garrett in the record. There is no reference to any such testimony in the record, other than as referred to in the note of evidence. We suppose such evidence was introduced, but it has been omitted. Where oral evidence is introduced, if before the court, it should be taken down in writing and signed by the witness, and then, on appeal, recorded in the record as a part...