Higdon v. Kennemer

• Decision Date: 29 October 1898
• Citation: 24 So. 439,120 Ala. 193
• Parties: HIGDON v. KENNEMER.
• Court: Alabama Supreme Court

24 So. 439

120 Ala. 193

HIGDON v. KENNEMER.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Jackson county; J. A. Bilbro, Judge.

Action by T. H. Higdon against J. C. Kennemer. There was a judgment for defendant, and plaintiff appealed. Reversed.

This is an action in debt, brought to recover the statutory penalty for cutting trees on the land of another, without the consent of the owner. The defendant filed a plea in answer to the complaint, in which he averredthat he is not guilty of the matters alleged in the complaint. On the trial of the cause the plaintiff, as a witness in his own behalf, testified that at the time of the cutting complained of he was in possession and claiming title to the land from which the trees were cut that he purchased said land from one Mary J. Barnes, and has been in possession of it ever since the purchase of it in 1890. He introduced in evidence a paper in the form of a deed conveying the land to him, and purporting to be signed by Mary J. Barnes and her husband, George W. Barnes, by their marks only, and acknowledged by them before a notary public of Tennessee, whose certificate of acknowledgment was not substantially in the form prescribed by our law. This paper was dated January 14, 1890, and had a certificate of record in the office of the probate judge of the county of Jackson state of Alabama, as of September 27, 1892. The evidence for the plaintiff tended to show that Mary J. Barnes purchased the land from which the trees were cut from one George W Hill, the only son and heir of Bird Hill, deceased, George inheriting it from his father, and that Bird Hill had lived on the land at one time, and owned it from before the war up to the time of his death. The plaintiff introduced a duly-executed and duly-recorded deed from George W. Hill, conveying the land to Mary J. Barnes, dated March 15, 1889. It appeared from the evidence that the trees were cut in the opening of a road over the land; that a petition for the opening of said road had been gotten up and signed, in the neighborhood, asking the commissioners' court to open said road, but that no action had been taken on it by the court; that in getting up this petition plaintiff had been consulted as the owner of this land, through which the road was to pass, and after stipulating, and having it inserted in the petition, that the road should not run in a certain direction, and over certain lands, he signed the petition. It was further shown that in accordance with a previous agreement with some of the petitioners they assembled at a certain appointed time, and blazed out a line for the road to run over, and agreed that upon a designated day the party would reassemble and cut the road as thus marked. Before the day fixed by this agreement for the reassembling, the defendant came with another party, and against the plaintiff's objection and positive prohibition cut the road in a different direction from the one which had been previously blazed out, and it was for the cutting of the trees incident to the cutting out of this road that the present suit was brought. The defendant offered in evidence a patent from the United States government to one John Gilliam, conveying to said Gilliam the land in controversy, and dated May 1, 1848. The plaintiff moved to exclude from the jury this patent from the government to John Gilliam, upon the ground that it was illegal, irrelevant, and inadmissible evidence, and because the defendant did not seek to connect himself with the title in any way, and upon the further ground that the defendant entered in recognizance of plaintiff's title. The court overruled this motion, allowed the patent to be introduced in evidence, and to this ruling of the court the plaintiff duly excepted. After the introduction of all the evidence, and upon the court's stating that he would give the general affirmative charge in favor of the defendant, the plaintiff asked leave of the court to amend his complaint by adding thereto a count in trespass in the code form, claiming $500 damages of the defendant for cutting down the plaintiff's trees, bushes, tramping down the grass on plaintiff's land, etc. Upon the objection of the defendant to this amendment the court declined to allow the plaintiff to so amend his complaint, and to this ruling the defendant duly excepted. Thereupon the plaintiff asked leave of the court to amend his complaint by adding a count in assumpsit, claiming the value of the timber cut by the defendant, and placing the value of $100. Upon the defendant's objection to this amendment the court declined to allow the amendment to be made, and to this ruling of the court the plaintiff duly excepted. At the request of the defendant, the court gave the general affirmative charge in his behalf, and to the giving of this charge the plaintiff duly excepted. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

J. E. Brown, for appellant.

R. C. Hunt and Tally & Proctor, for appellee.

BRICKELL C.J.

1. The proposed amendments of the complaint were founded in a misconception of the nature and character of the action, and were properly disallowed. Though in form an action of debt it is founded in fact on a tort,-the trespass committed in the cutting of the trees or saplings on the land of the plaintiff. For the trespass the statute (Code 1886, § 3296; Code 1896, § 4137) inflicts penalties varying in amount with the character of the tree or sapling cut or destroyed. The statute not prescribing the remedy to be pursued for the recovery of the penalties, the common-law principle applies that when a statute gives a penalty, and provides no...