Morris v. Yancey

• Decision Date: 29 June 1961
• Docket Number: 1 Div. 963
• Citation: 132 So.2d 754,272 Ala. 549
• Parties: J. D. MORRIS v. Claude YANCEY.
• Court: Alabama Supreme Court

Page 754

132 So.2d 754

272 Ala. 549

J. D. MORRIS v. Claude YANCEY.

1 Div. 963.

Supreme Court of Alabama.

June 29, 1961.

Rehearing Denied Sept. 21, 1961.

Cecil G. Chason, Foley, and Thompson & White, Bay Minette, for appellant.

Wilters & Brantley, Bay Minette, for appellee.

MERRILL, Justice.

This is the third appeal by the plaintiff, J. D. Morris, in an ejectment suit against appellee. On the first appeal, we reversed a judgment in favor of appellee because the trial court had given the general charge for appellee, and we held that a jury question was presented. 266 Ala. 54, 94 So.2d 195. At the second trial, the court submitted the question to the jury and verdict was in favor of the appellee. We affirmed the judgment based upon the verdict. 267 Ala. 657, 104 So.2d 553.

Appellant filed another ejectment suit for the same lands. Verdict and judgment were again for appellee and this appeal followed. This is the final ejectment suit between these parties relating to these lands. Tit. 7, § 959, Code 1940.

There is little material difference in the facts in this case and those set out in Morris v. Yancey, 267 Ala. 657, 104 So.2d 553. Since we do not reach a discussion of the facts on this appeal, the facts will not be restated here.

Of the twelve assignments of error, appellant purportedly argues all but No. 6 in brief. We list one group '1. For that the verdict of the jury and the judgment of the court is contrary to the great weight of the evidence.

'2. For that the verdict of the jury and the judgment of the court is contrary to the great weight of the evidence in that the legal evidence on the lands sued for fails to show such possession as will establish prescription on the part of the defendant.

'9. For that the verdict of the jury and the judgment of the court is contrary to the evidence in that the legal evidence concerning the property described in the complaint did not meet the requirements of the law for prescription.

'11. For that the verdict of the jury and the judgment of the court is contrary to the evidence in that it is based on evidence admitted concerning the occupancy of a tract or parcel of land which was not involved in the litigation nor described in the complaint.

'12. For that the verdict of the jury and the judgment of the court is contrary to the evidence in that the court erroneously admitted evidence of the occupancy of the 4-acre tract exception in said complaint.'

These assignments of error are not sufficient to present any question for our review. Bertolla v. Kaiser, 267 Ala. 435, 103 So.2d 736; Thompson v. State, 267 Ala. 22, 99 So.2d 198; Mulkin v. McDonough Construction Co. of Ga., 266 Ala. 281, 95 So.2d 921; King v. Jackson, 264 Ala. 339, 87 So.2d 623.

Another group reads:

'7. For that the court erred in overruling objections of the plaintiff to testimony of the defendant and of the defendant's witnesses as to possession of the defendant of property excluded in the complaint.

'8. For that the court erred in admitting testimony repeatedly concerning occupancy and possession of the 4-acre tract which was excepted from the complaint.

'10. For that the court erred in admitting testimony repeatedly concerning occupancy and possession of land not a part of this action.'

These assignments of error are too general. Morris v. Yancey, 267 Ala. 657, 104 So.2d 553; Orso v. Cater, Ala., 133 So.2d 864.

This court has repeatedly held that only adverse rulings of the trial court are subject to an assignment of error on appeal from a judgment in a civil case based on a jury verdict. Morris v. Yancey, 267 Ala. 657, 104 So.2d 553. Moreover, there is no citation in the assignment of error of the transcript page on which the alleged error could be found. Brooks v. Everett, Ala., 124 So.2d 105; Orso v. Cater, supra.

Assignments of error 3 and 4 charge that the verdict was contrary to the following part of the oral charge:

'So, gentlemen, as I said, when it comes down to it, you are the sole judges. The law is limited as to a paper title and possession and on the adverse side title by prescription. You are to determine which is the stronger.'

This statement was part of the recapitulation of the trial court. The jury was to decide between plaintiff's evidence of paper title and alleged possession, and defendant's evidence of possession by his father from 1897 to 1933, and his own possession since that date. The verdict was not contrary to this instruction.

The only remaining argued assignment of error is that the court erred in denying plaintiff's motion for a new trial on the grounds of newly discovered evidence.

To warrant the granting of a motion for a new trial on the ground of newly discovered evidence, the petitioner must show the nature of the newly discovered evidence and the fact that such evidence would probably cause a different conclusion to be reached, and that it is no; merely in the nature...