Heath v. Lewis

• Decision Date: 28 June 1917
• Docket Number: 3 Div. 299
• Parties: HEATH et al. v. LEWIS et al.
• Court: Alabama Supreme Court

76 So. 451

200 Ala. 509

HEATH et al. v. LEWIS et al.

3 Div. 299

Supreme Court of Alabama

June 28, 1917

Appeal from Circuit Court, Autauga County; Leon McCord, Judge.

Suit by William Lewis, who died during suit, the cause being revived in the name of his next of kin and heirs at law, against T.H Heath and Maggie Nell Myrick. From a judgment for plaintiffs defendants appeal. On motion to strike bill of exceptions and on the merits. Judgment reversed, and cause remanded.

McClellan J., dissenting.

C.E.O. Timmerman and Eugene Ballard, both of Prattville, for appellants.

Gipson & Booth, of Prattville, for appellees.

GARDNER J.

This cause was submitted upon motion to strike the bill of exceptions, and also upon the merits. The bill of exceptions was presented to the presiding judge on January 22, 1917. On April 16, 1917, he approved the same, signed it, and it was filed in the office of the circuit clerk on May 12, 1917. Some time subsequent to May 12, 1917, and more than six months after the trial of the cause, the bill of exceptions was altered by adding thereto the following direction: "Clerk will leave in motion for a new trial." When the bill of exceptions was filed with the clerk, the motion for a new trial was stricken out of the same, by being crossed with pencil, and the word "out" inserted in the margin against the cross mark. It is insisted that this was an unauthorized alteration of the bill of exceptions after the same had been signed and settled, and more than six months after the trial of the cause, and that, therefore, the same could not be changed, and that such alteration justifies the bill of exceptions being stricken.

We agree that the alteration was unauthorized, whether done by the presiding judge or some one else; but we are of the opinion that such action does not justify the striking of the entire bill of exceptions. The alteration does not appear to have been made by direction of the appellants, or that the appellants had any notice or knowledge thereof. It did not call for a change of any of the testimony in the bill of exceptions, or any of the pleadings in the cause, or anything of that character, but merely called for the insertion of the motion for a new trial, which was on file. There is no difficulty, therefore, in discerning the unauthorized alteration, and we are persuaded that the alteration is void, and therefore should be disregarded, leaving no motion for a new trial in the bill of exceptions, but that the bill of exceptions as a whole should not be stricken, but be considered correct as the same appeared on the date of May 12, 1917. Briggs v. T.C., I. & R.R. Co., 175 Ala. 130, 57 So. 882. The facts presented in L. & N.R.R. Co. v. Malone, 116 Ala. 600, 22 So. 897, in regard to the bill of exceptions there involved, readily distinguish that case from the situation in the instant case.

The motion to strike the bill of exceptions will therefore be denied.

On the Merits.

This suit is one in ejectment brought by one William Lewis against the appellants, who claimed by devise from Katherine Pullins. William Lewis, original plaintiff, died during the pendency of the suit, and the cause was revived in the name of the appellees, as his next of kin and heirs at law. William Lewis, original plaintiff, and Katherine Pullins, through whom defendants in this suit claim title, were brother and sister, being the surviving heirs of one Louisa Lewis (also referred to as Lizzie Lewis), who died in the year 1877. The testimony shows that Louisa (or Lizzie) Lewis was the owner of the land involved in this suit, and was in possession thereof at the time of her death. When she died, she was living with her daughter, Katherine Pullins, on this land, and after her death the said Katherine Pullins remained in possession of the land until her death in 1915. Louisa Lewis left no will, and there has been no administration on her estate. William Lewis, the original plaintiff, moved to Texas right after the war, and during all these years has had no actual possession of any of the land in controversy; but his sister, Katherine Pullins, has all the while remained in the actual, peaceable, and uninterrupted possession of said land, using it for all the purposes for which it was adapted, selling some of the timber to sawmills on three different occasions, and about 20 years ago executing a mortgage thereon.

The foregoing facts appear to be without dispute. The defendants offered in evidence what purports to be a deed executed by the said Louisa (or Lizzie) Lewis to Katherine Pullins conveying to the latter these lands under the following description: "All the lands now owned by me in Autauga county, Alabama"--and based upon a recited consideration of the grantee having cared for the grantor during her old age, and the further agreement to continue to care for the rest of her life. The deed purported to be signed by the said Lizzie Lewis, and attested...