Milner v. Milner

• Decision Date: 21 December 1893
• Citation: 14 So. 373,101 Ala. 599
• Parties: MILNER ET AL. v. MILNER.
• Court: Alabama Supreme Court

14 So. 373

101 Ala. 599

MILNER ET AL. v. MILNER.

Supreme Court of Alabama

December 21, 1893

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Trespass by Maud Milner against Leonora J. Milner and one Rogers. Judgment for plaintiff. Defendants appeal. Affirmed.

Among other portions of the court's general charge, to which the defendants excepted, was the following instruction "The probate proceedings could not confer any right upon the defendant Leonora J. Milner to take said property." The court, at the request of the plaintiff, gave, among others, the following written charges: (1) "If the property is in possession of another, and there is no evidence of title, the presumption is that it is the property of the person in possession, and it devolves upon the party taking it to show that he had a superior title." (2) "The court further charged the jury that the probate proceedings could not confer any right upon the defendant Leonora J. Milner to take the said property." The defendants separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give, among other charges requested by them, the following: (10) "If the jury believe from the evidence that, at the time the goods were taken and the room entered by defendant Rogers, the defendant Leonora J. Milner, the widow of E. L. Milner, deceased, was in general control and possession of the house, including the room occupied by plaintiff, and if the jury further believe from the evidence that, at the time said room was entered and the goods taken the title to the premises was in the plaintiff and two other persons, then the plaintiff cannot recover for the entering of said room." (12) "The court charges the jury that this is a joint suit against two defendants, and whatever judgment they render, if against the defendant, must be a joint judgment against both defendants, and the jury cannot find judgment for one amount against one of the defendants, and another amount against the other defendant even if the plaintiff is entitled to recover; and the jury cannot find or assess punitive damages unless they believe that both defendants were guilty of rude or improper conduct."

Lane &amp White, for appellants.

White & Howze, for appellee.

McCLELLAN J.

This is an action of trespass prosecuted by Maud Milner against Leonora J. Milner and one Rogers. The complaint claims damages "for trespass by the defendants" on a certain described bedroom, which was at the time in the possession and occupation of the plaintiff, and for "wrongfully, violently, and rudely taking and carrying away" therefrom certain items of personal property. The case was tried on the general issue. The house of which the room in question was a part belonged to the plaintiff and her brother and sister in common, having descended to them from their mother. After the mother's death, their father continued in possession and occupancy of the premises plaintiff living with him, until his death, not long before this litigation arose. Meantime he had taken a second wife, in the person of the defendant Leonora J. Milner, who continued to reside in the house down to the time of the alleged trespass, plaintiff all the time occupying this room. Said defendant had the personal effects in the room set apart to her and a minor son of her late husband by his first marriage, by a decree of the probate court, as in part their exemptions of personalty from administration; but plaintiff insisted on the trial of this case, and introduced evidence going to show, that her father had given her most of this property in his lifetime, and that, as to the rest, it had belonged to her mother, and became hers at her mother's death. This gift by the father was denied by defendants, and one aspect of the evidence tended to show the contrary. There was also evidence that, after her husband's death, Leonora continued in...