Johnson v. Cox

• Decision Date: 30 November 1916
• Docket Number: 7 Div. 812
• Citation: 73 So. 922,198 Ala. 563
• Parties: JOHNSON et al. v. COX.
• Court: Alabama Supreme Court

73 So. 922

198 Ala. 563

JOHNSON et al. v. COX.

7 Div. 812

Supreme Court of Alabama

November 30, 1916

Rehearing Denied Jan. 18, 1917

Appeal from City Court of Gadsden; John H. Disque, Judge.

Actions by John F. Cox against R.W. Johnson and others. From judgments for plaintiff, defendants appeal. Affirmed.

J.M Miller, of Gadsden, for appellants.

Motley & Motley, of Gadsden, for appellee.

MAYFIELD J.

Appellee sued appellants in two actions--one of unlawful detainer, and the other of ejectment--to recover possession of 80 acres of land. It was claimed by appellee that he had leased this tract of land to appellants for a term, and that after the expiration of the lease they declined to surrender the possession to appellee, but unlawfully detained the same. The plaintiff recovered judgment in the justice of the peace court, in the unlawful detainer suit, and the defendants appealed. Before trial was had in the circuit or city court a written agreement was entered into between the parties or their counsel, to the effect that plaintiff could amend the complaint as to the damages claimed; that the notice to quit the possession, made an exhibit to the agreement, should be introduced in evidence without further proof of execution or service; that trial should be had only in the action of unlawful detainer; and that the action of ejectment should abide the result of the detainer suit trial. The trial resulted in a verdict and judgment for plaintiff in the circuit or city court, in the unlawful detainer suit, and judgment for the plaintiff also was entered in the ejectment suit, in accordance with the agreement above referred to; and defendants appeal in both cases.

The chief insistence of appellants is that the trial court committed reversible error in allowing the complaint to be amended on appeal, so as to claim or describe one 40-acre tract of land which was not claimed or described in the justice court; that is, that the trial in the justice court was as to the detention of the S.W. 1/4 of the S.W. 1/4 of section 13, and the N.E. 1/4 of the N.E.

1/4 of section 24, both in township 11, range 7 east; and on appeal the plaintiff was allowed to change the complaint so as to substitute the N.E. 1/4 of the N.W. 1/4, section 24, for the N.E. 1/4 of the N.E. 1/4, thereby effecting an entire change--not allowable by the rules of pleading, especially on appeal. Differently stated, this contention is that plaintiff should not be allowed to sue appellants in the justice court for the detention of a given 40, and then, on appeal, to change base and sue for the detention of another and different 40.

If the record bore out this contention, we would be compelled to reverse; because it is well and correctly settled that there could not be a recovery, on appeal, for land not sued for or put in issue in the original trial in the justice court. The recitals in the record proper, however, to which we must look and by which we are bound as to rulings on pleadings especially the complaint and pleas, do not show that the suit was for entirely different tracts of land, in the justice court and on the appeal; but...