Pennington v. Mixon

• Decision Date: 08 February 1917
• Docket Number: 4 Div. 619
• Citation: 74 So. 238,199 Ala. 74
• Parties: PENNINGTON v. MIXON.
• Court: Alabama Supreme Court

74 So. 238

199 Ala. 74

PENNINGTON v. MIXON.

4 Div. 619

Supreme Court of Alabama

February 8, 1917

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Statutory ejectment by Travis Mixon against Thad B. Pennington. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

F.M Gaines and E.S. Thigpen, both of Dothan, for appellant.

Farmer & Farmer and T.M. Espy, all of Dothan, for appellee.

McCLELLAN J.

Mixon sued Pennington in statutory ejectment to recover a plat of land lying between their respective larger, uncontested holdings. Over the objection of the defendant (appellant) and after evidence taken and after arguments made, the court suspended the trial and permitted the plaintiff to add count 2 to the complaint, wherein a different description (from that appearing in the original count) of the land sued for was introduced into the pleading, and thereupon allowed further testimony to be taken. There can be no question of the right of the court to exercise and to give effect to a discretion in such circumstances; and nothing is made here to appear that would warrant this court in concluding that the discretion reposed in the court was abused. The judgment entry recites:

"The defendant disclaims possession of the land sued for, and suggests that the suit arises over a disputed boundary line. The court then made up the issue as to where the true boundary lines between the lands of the plaintiff and defendant, it appearing that the plaintiff owns the N.W 1/4 of N.W. 1/4 of section 31, township 1, and range 27, and that the defendant owns the S.W. 1/4 of S.W. 1/4 of section 30, township 1, range 27. Thereupon came a jury of good and lawful men, to wit, M.M. Wade, foreman, and 11 others, who upon their oaths do say: 'We, the jury, find the true line between the N.W. 1/4 of N.W. 1/4 of section 31, township 1, range 27, and the S.W. 1/4 of S.W. 1/4 of section 30, township 1, range 27, to be the line beginning on the range line between ranges 26 and 27 on the west side of N.W. 1/4 of N.W. 1/4 of section 31, township 1, range 27, where Travis Mixon, on November 5, 1915, drove or put down a light wood stob, or stake thence running south 1 degree 22 1/2 minutes east.' It is therefore considered and adjudged by the court that the plaintiff, Travis Mixon, have and recover of the defendant, Thad Pennington, the lands sued for, to wit: Beginning at a point on the range line between ranges 26 and 27 on the west side of N.W. 1/4 of N.W. 1/4 of section 31, township 1, range 27, where the said Travis Mixon, on November 5, 1915, drove or put down a light wood stob or stake thence running south 1 degree and 22 1/2 minutes east, as found and described by the jury, together with the costs in this behalf expended, for which let writ of possession and execution issue."

The disclaimer filed by the defendant (Code, § 3843) was "an admission of plaintiff's title, with denial of defendant's possession." Wade v. Gilmer, 186 Ala. 524, 526, 64 So. 611, 612,...