Minor v. A.B. Legg & Sons Burial Ins. Co., 6 Div. 255

• Decision Date: 17 January 1952
• Docket Number: 6 Div. 255
• Citation: 256 Ala. 577,56 So.2d 408
• Court: Alabama Supreme Court
• Parties: MINOR et ux. v. A. B. LEGG & SONS BURIAL INS. CO., Inc.

Page 408

56 So.2d 408

256 Ala. 577

MINOR et ux. v. A. B. LEGG & SONS BURIAL INS. CO., Inc.

6 Div. 255.

Supreme Court of Alabama.

Jan. 17, 1952.

Reuben L. Newton, Jasper, for appellants.

Fite & Fite, Jasper, for appellee.

BROWN, Justice.

The bill filed by the appellees January 12, 1951, alleges that 'Complainant is the owner of Lot 31 in Block 229 according to map recorded in Map Book 1, Page 76 in the office of the Probate Judge of Walker County, and defendants are the owners of Lot 16 in said Block 229 in the city of Jasper, Alabama. The said lot of complainant joins the said lot of the defendants and there is dispute between the parties hereto as to the true location of the line between said lots. The correct line between said lots is as surveyed by N. M. Appling, engineer, and is described as follows: 'Beginning at the northeast corner of Lot No. 32, Block 229, Jasper, Alabama, said corner being a four inch square concrete monument; thence in a southerly direction along the west property line of Third Avenue, 130.0 feet to the southeast corner of lot No. 31 Block 229, said corner being a four inch square concrete monument; thence in a westerly direction at a right angle to Third Avenue and along the south line of Lot No. 31, said line being the line between Lot No. 16 and Lot No. 31, a distance of 136 feet to the southwest corner of Lot No. 31, said corner being a four inch square concrete monument.'

The complainant prayed 'that a decree be rendered in this court establishing the true boundary line between complainant's said lot No. 31, and defendants' said Lot No. 16, and that such orders and decrees be rendered as may be appropriate to mark and identify the said line and that the respective parties hereto be required by this Court to surrender possession of any part of either of said lots which may be held by either of them, respectively, beyond the line established by the Court.'

The defendants demurred to the bill on the following grounds: '(1). There is no equity in the bill. (2) Said bill is vague, indefinite and uncertain and fails to show wherein the alleged error in location of the subject land line lies. (3) Said bill fails to state a cause of action.'

This demurrer was overruled and this ruling is the basis for the first assignment of error. This assignment of error is not argued, however, but it is without merit.

The averments of the bill show a disputed boundary line within the contemplation of the statute. Code 1940, Title 47, § 5; Smith v. Cook, 220 Ala. 338, 124 So. 898; Mobile County v. Taylor, 234 Ala. 167, 174 So. 301.

The answer filed by the defendants February 26, 1951, alleges inter alia, 'that the line as surveyed by N. M. Appling, Engineer, and above-described is incorrect but that the correct line between said lots is described as follows: Begin at the NE corner of Block 229 and run south along the West right of way line of 3rd Avenue a distance of 245 feet to the NE corner of Lot No. 16 in Block 229, Jasper, Alabama, said corner being a four inch square concrete monument; thence in a westward direction and parallel to the north line of said Block 229 a distance of 136 feet to the NW corner of Lot No. 16, said line being the line between Lot 16 and Lot No. 31.

'For further answer to said paragraph the respondents state that the recognized line between Lots No. 16 and No. 31 has run parallel with the north line of Block 229 and that such line has been recognized for 20 years and that the respondents and those through whom they claim title have claimed to own the property embraced in Lot No. 16 up to the line on the north side of said lot which runs parallel with the north line of Block 229. That they have claimed to own said property for over a period of 20 years and that their claim has been open, hostile, notorious, adverse exclusive to any and all claims.'

On ex parte motion filed by complainant March 16, 1951, to set the case for hearing on the 26th of March, 1951, the court entered an order, 'That said cause be and the same is set for final hearing in Jasper, Alabama, beginning at 9 o'clock a. m. on Monday, March 26, 1951. The Register is directed to deliver a copy of this order to the solicitors of record for the parties to this suit, and the parties may have before the court such witnesses as they wish to examine on the trial of this case.' There is nothing in the record showing that a copy of said order was delivered to the defendants or their solicitors of record,--Curtis, Maddox and Johnson and Reubin L. Newton.

Notwithstanding this omission, the record shows that on March 29, 1951, the court sat and heard the oral testimony offered by the complainant and received documentary evidence. At the conclusion of such hearing the court stated: 'Gentlemen, I didn't know Mr. Maddox' name was signed on that paper, I hadn't checked the answer in this case. I talked to Mr. Newton this morning, he was not able to be here, and he agreed that we proceed with this hearing. I told him if he wanted to take some testimony later he could, I am not sure what he expects to do. If he wants to take some testimony he can, and if he doesn't I will decree this case on what we have heard this morning.' The record then shows: '(This Was all the Testimony Taken on This Date)'.

This course of the procedure is made the basis of assignments of error 2, 3, 4 and 5 and appellants strenuously insist that the record shows such gross noncompliance with Rule 60 of Equity Practice as to work a reversal of the decree. Equity Rule 60, Code 1940, Tit. 7 Appendix, p. 1096. If this was all that appeared in the record we concede that error to reverse would be the inevitable result. But the record shows that on March 30, 1951, the parties appeared in open court, William I. Minor in person with his solicitor Mr. Newton, and without objection proceeded with the taking of the testimony, cross examining the complainants' witnesses and examining several others including the respondent Minor. Taking of this further testimony continued through March 30th into the 31st of March, covering 26 pages of the record. We are, therefore, not of...