Parker v. Jefferson County

• Decision Date: 18 January 1923
• Docket Number: 6 Div. 693.
• Citation: 209 Ala. 138,95 So. 364
• Parties: PARKER v. JEFFERSON COUNTY.
• Court: Alabama Supreme Court

95 So. 364

209 Ala. 138

PARKER v. JEFFERSON COUNTY.

6 Div. 693.

Supreme Court of Alabama

January 18, 1923

Rehearing Denied Feb. 10, 1923.

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Action by Jefferson County against Monroe Parker. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Somerville and Gardner, JJ., dissenting.

Justices of the Peace 84(6)

Pleadings upon demurrer must be construed most strongly against the pleader.

The action, instituted by appellee against appellant, is for forcible entry and unlawful detainer. The complaint is as follows:

"The plaintiff sues to recover possession of a house occupied by the defendant in one of Plaintiff's convict camps known as camp #4 in Jefferson County, said camp being located on land situated in Jefferson County, Alabama, described as follows: In the Northeast Quarter (NE 1/4) of Section Six (6), Township Nineteen (19), Range Four (4), situated if [in] Jefferson County, Alabama, of which plaintiff was in possession, and pending such possession, and before commencement of this suit, the defendant forcible [forcibly] entered and now unlawfullt [unlawfully] detains."

The defendant's (appellant's) demurrer to the complaint-in the justice's court as well as later on appeal to the circuit court-took the objection, among others, that the description in the complaint was deficient, was too uncertain and indefinite. The demurrer was overruled, and this action of the circuit court is assigned for error.

The summons was issued on November 1, 1921; and the time for the hearing was fixed therein at 12 noon November 10, 1921. The process was served on defendant on November 4, 1921. The defendant appeared in person on November 10, 1921, and resisted plaintiff's motion for continuance to November 19, 1921. On the last-named date, to which the cause was continued, the defendant made the objection that he had not been served with the process "at least six days before the return day of the process." Code, § 4266.

There was judgment for plaintiff.

Benton & Bentley, of Bessemer, for appellant.

W. K. Terry, of Birmingham, for appellee.

McCLELLAN, J.

The objection that defendant had not had "at least six days" notice of the action "before the return day of the process" (Code, § 4266) was dilatory in character (Beck v. Glenn, 69 Ala. 121, 126); and, the point being taken after defendant's appearance and after the cause had been continued by the court on plaintiff's motion, the defendant had waived the objection even in the justice's court.

The complaint was subject to the demurrer. Its description of the subject-matter of the action was too indefinite and uncertain to answer the purposes of good pleading. Lessley v. Prater, 200 Ala. 43, 75 So. 355; Bradford v. Sneed, 174 Ala. 113, 56 So. 532. The property the possession of which is sought to be recovered is described as a "house." If it is assumed that "house" included the lot on which it was situated, still the complaint leaves wholly undesignated what house or lot in plaintiff's "camp # 4," which camp is located on 160 acres in a certain section in Jefferson county, is sought to be recovered. Manifestly the premises sought to be regained are a part of a larger area; and the complaint does not so definitely describe the premises sued for as to avoid recourse, in the execution of possessory process, to service and function on the part of the sheriff that the law has not conferred on that officer. The allusion to the "house" as being that in possession of or occupied by defendant avails nothing in aid of the complaint's sufficiency when considered on demurrer. Bradford v. Sneed, supra. In order to identify the subject-matter, from the description in this complaint, "it would be necessary for the sheriff to take testimony and pass upon its effect," to the end of determining of what land the defendant was in possession, what premises he occupied.

Reliance is placed by the appellee upon Huffaker v. Boring, 8 Ala. 87, to justify the description in this complaint. There, as the court noted, the description designated 50 acres situated within the west part of the quarter section. That call was capable of accurate ascertainment. Sims v. Thompson, 30 Ala. 158, and others in its line. Here there is no factor of description whereby the area (if so) in question could be ascertained or identified with any degree of certainty.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

ANDERSON, C.J., and SOMERVILLE and THOMAS, JJ., concur.

On Rehearing.

McCLELLAN J.

Reconsideration of the conclusion that the complaint (set out in the statement ante) was subject to the demurrer questioning the sufficiency thereof, in respect of the description of the property claimed, is invoked by earnest argument in support of the application for rehearing. In the early case of Wright v. Lyle, 4 Ala. 112, 115, it was held that a complaint in this character of action "should describe the land in controversy with so much particularity and precision as will inform the defendant what he is to defend against, and the court for what it is called on to render judgment. " (Italics supplied.) This rule consists with that generally accepted, and its statement has not been qualified in subsequent deliverances made by this court. Indeed, so recently as Little v. Thomas, 204 Ala. 66, 67, 85 So. 490, the pronouncement was that sufficient legal accuracy is attained in description of land sought to be recovered in ejectment if it contains data whereby the sheriff is enabled "to definitely know" of what lands the prevailing plaintiff should be put in possession. A complement of this idea is afforded by the limitation, expressed in Bradford v. Sneed, 174 Ala. 113, 116, 56 So. 532, and recognized in Lessley v. Prater, 200 Ala. 43, 75 So. 355, that in executing the process in favor of a successful plaintiff the sheriff should not be required "to take testimony and pass upon its effect." Such an officer may, of course, apply the sufficient data given to the identification of the subject-matter of the process.

At times there has been apparent, rather than real, variation in the application of the stated doctrine of certainty and definiteness in concrete cases; but when many of these decisions are considered in the light of the fact that no demurrer was interposed to test the sufficiency of the complaint in respect of its description of the land involved (Snoddy v. Watt, 9 Ala. 609, 611; Code, § 4143 forbidding, after verdict, the annulment of judgments for matter "not previously objected to, if the...