Leath v. Cobia

• Decision Date: 06 February 1912
• Parties: LEATH v. COBIA ET AL.
• Court: Alabama Supreme Court

57 So. 972

175 Ala. 435

LEATH v. COBIA ET AL.

Supreme Court of Alabama

February 6, 1912

Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.

Ejectment by E. Leath against Eugene Cobia and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Burnett Hood & Murphree, for appellant.

Hugh Reed and James Fouché Matthews, for appellees.

SIMPSON J.

This is a statutory action of ejectment, by the appellant, for the recovery of one acre of land described in the pleading. Other lands and interests were originally mentioned, but were elminated by disclaimer, and while the defendant set up an easement, that was abandoned, and the verdict was for the defendant for the one acre of land only, and that alone will be considered.

It is unnecessary to consider the action of the court on motion to strike and on demurrers to special pleas, as this court has frequently decided that, besides a plea since last continuance, the plea of "not guilty" is the only proper plea in an action of ejectment; and this case was tried and the verdict rendered on that plea. Vadeboncoeur v. Hannon, 159 Ala. 617, 49 So. 292; Edinburgh-American Land Mortgage Co. v. Canterbury, 169 Ala. 444, 53 So. 823; Etowah Mining Co. v. Doe ex dem Carlisle, 127 Ala. 668, 669, 29 So. 7; Webb et al. v Reynolds, 139 Ala. 398, 36 So. 15.

The defendant set up title to the one acre of land under certain proceedings in the probate court in 1904, for the condemnation of said one acre for the purpose of enabling him to build a dam, for a public gristmill on the opposite bank of the Chattooga river.

In this collateral proceeding it does not affect the validity of the condemnation proceedings that the petition for condemnation was addressed to the judge of probate, in place of to the probate court, as required by section 3889 of the Code of 1907.

The petition prays that "a writ issue from your honorable court of probate," etc., that "summons may issue from your honor's court of probate," etc., requiring the inquest to be returned to "your honor's court of probate," showing that the proceeding was in the probate court.

Nor is it material that the petition does not mention the age and the residence of Leath, the party who owned the one acre of land on the opposite side of the river, as it prays that summons be served on him; the further proceeding shows that summons was served on him, his own testimony shows that he was over 21 years of age, and the final decree shows that the amount of condemnation money was paid.

It is true that, in proceedings of this kind, the petition must state the jurisdictional facts, and when that is the case, the court acquires jurisdiction, but there are many defects which would be fatal on demurrer, or some direct proceeding, yet are not fatal in a collateral proceeding, in which the presumption of regularity is reversed. 2 Mayf. Dig. p. 946, § 205; Id. p. 947, § 220.

The act of 1822 (Laws 1822, p. 56) required petitions for sale of real estate to state the names of the heirs, and "which are of age, which are infants or femes covert," yet, in a case where the petition failed to state which of the heirs were of full age, this court held that to be a mere irregularity and not jurisdictional. Field's Heirs v. Goldsby, 28 Ala. 218, 221, 222, 224, 225, 65 Am. Dec. 341.

Under the Code of 1852, § 1755, where the petitioner merely expressed his opinion, in place of stating the facts as required by the statute, and gave a description of the land which would have been held bad as a matter of pleading, this court held that on collateral attack the defects were immaterial, and (speaking through Brickell, J.) said: "As a matter of pleading these averments are wholly insufficient. * * * If the sufficiency of the petition had been put in issue by demurrer, or assailed on error, judgment against it must have been pronounced. Then, as has been said by this court, all intendments would have been indulged against the pleader. When the proceedings ripen into a decree, and are collaterally assailed, and rights of property have attached, the rule is changed, and every reasonable intendment is made in favor of the validity of the decree." Also, that "an amendable defect of this character, we cannot believe, will ever justify a sentence of nullity against judicial proceedings, when collaterally assailed." Wright's Heirs v. Ware, 50 Ala. 549, 557, 559.

In a later case, where the allegations of the petition were not in the exact language of the statute, this court (speaking through Manning, J.) said: "Public policy requires that all reasonable presumptions should be made in support of such sales," and, "if a different rule prevailed, purchasers would be timid and estates consequently be sold at diminished value." And further, after stating the rule as to presumptions, "we should understand the petition as it is reasonable to infer that the party who made it and the judge who acted upon it did understand it, and not as they were bound to understand it," and then quoted from Wright's Case, supra. Bibb v. Bishop's Home, 61 Ala. 326, 330, 331.

These cases are quoted in a subsequent case, where the petition alleged merely that C. and N. owned the "remaining undivided one-half interest" in the land, without stating what part each owned, and it is stated that though the petition would have been insufficient on demurrer, yet on collateral attack it is otherwise. Whitlow v. Echols, 78 Ala. 206.

In a case where the petition failed to state the residences of the persons interested in the property, this court said that "this would, no doubt, be a good ground of demurrer to the petition, and reversible error, on direct assailment by appeal. Perhaps it might be regarded as jurisdictional if there was no appearance of the defendants in the court...