Johnson v. Cox, 7 Div. 812

CourtSupreme Court of Alabama
Writing for the CourtMAYFIELD, J.
Citation73 So. 922,198 Ala. 563
Decision Date30 November 1916
Docket Number7 Div. 812
PartiesJOHNSON et al. v. COX.

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. [73 So. 923.]

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...

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2 practice notes
  • Birmingham Waterworks Co. v. Justice, 6 Div. 111
    • United States
    • Supreme Court of Alabama
    • October 21, 1920
    ...of exceptions controls as to matter which should appear by the bill. C. of Ga. Ry. Co. v. Gross, 192 Ala. 354, 68 So. 291; Johnson v. Cox, 198 Ala. 563, 73 So. 922. Under the act of 1915 (Acts 1915, p. 722), changing the rule and practice as declared in Stokes v. Hinton, 197 Ala. 230, 72 So......
  • Johnson v. Cox, 7 Div. 811
    • United States
    • Supreme Court of Alabama
    • November 30, 1916
    ...of Gadsden, for appellants. J.M. Miller, of Gadsden, for appellee. MAYFIELD, J. Affirmed on authority of Johnson et al. v. Cox (7 Div. 812) 73 So. 922. ...
2 cases
  • Birmingham Waterworks Co. v. Justice, 6 Div. 111
    • United States
    • Supreme Court of Alabama
    • October 21, 1920
    ...of exceptions controls as to matter which should appear by the bill. C. of Ga. Ry. Co. v. Gross, 192 Ala. 354, 68 So. 291; Johnson v. Cox, 198 Ala. 563, 73 So. 922. Under the act of 1915 (Acts 1915, p. 722), changing the rule and practice as declared in Stokes v. Hinton, 197 Ala. 230, 72 So......
  • Johnson v. Cox, 7 Div. 811
    • United States
    • Supreme Court of Alabama
    • November 30, 1916
    ...of Gadsden, for appellants. J.M. Miller, of Gadsden, for appellee. MAYFIELD, J. Affirmed on authority of Johnson et al. v. Cox (7 Div. 812) 73 So. 922. ...

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