Pritchard v. Fowler

• Decision Date: 20 April 1911
• Citation: 171 Ala. 662,55 So. 147
• Parties: PRITCHARD ET AL. v. FOWLER ET AL.
• Court: Alabama Supreme Court

55 So. 147

171 Ala. 662

PRITCHARD ET AL. v. FOWLER ET AL.

Supreme Court of Alabama

April 20, 1911

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Ejectment by Laura Fowler and another against William H. Powers, in which Irene Pritchard intervened as landlord, and defends. Judgment for plaintiffs, and defendants appeal. The judgment was rendered October 15, 1909, and the bill of exceptions was signed December 27th following. Motion to strike bill of exceptions because not signed within the time. Motion denied and judgment reversed and remanded.

L. H. &amp E. W. Faith, for appellants.

Gregory L. & H. T. Smith, for appellees.

ANDERSON J.

The bill of exceptions was presented and signed within the time prescribed by section 3019 of the Code of 1907, which said section, and not the practice act of the city court on the subject of signing bills of exceptions, is in force. City of Montgomery v. Wyche, 53 So. 786. The motion to strike the bill of exceptions is overruled.

A judgment in ejectment was never final at common law. Either party failing might bring a new action, and the former judgment was not a bar to the last suit. This rule has been changed by the statute in this state to the extent that two judgments in favor of defendant between the same parties in which the same title is put in issue is a bar to any action for the recovery of the land, or any part thereof between the same parties or their privies, founded on the same title. Section 3858 of the Code of 1907; Williamson v. Mayer Bros., 117 Ala. 253, 23 So. 3. Section 4002 of the Code of 1907 makes judgments between parties and privies conclusive, as to the matter directly in issue, until reversed or set aside. This section appears in the Code with section 3858, and the two should be so construed as to give each of them a field of operation if it be practicable and reasonable to do so. Section 3858 deals specially with judgments in ejectment, and section 4002 declares the effect of judgments generally, and should therefore be construed as dealing with all judgments not specially provided for in said Code. "Generalibus specialia derogant." City of Montgomery v. Wyche, 53 So. 786.

It is insisted by appellants' counsel that the former judgment which is sought to be used as a bar to the present action was not a judgment in ejectment, and that it was conclusive on the parties as to the issue involved in said former trial. The former action was brought under the statute for a forcible entry or unlawful detainer, and was removed to the circuit court under the terms of section 4283 of the Code of 1907. It thereby became an action of ejectment to try title to the land, and was triable in all respects as an action of ejectment, except the plaintiff does not have to litigate over the title, when it appears that the defendant or those under whom he claims entered on said lands under some contract or agreement between plaintiff, or those under whom he claimed, or by use of force. When, however, the title is considered, the proceedings, pleadings, etc., are the same as in ejectment. Section 4285. This court has heretofore treated this action after removal to the circuit court as a statutory action of ejectment. In the case of Mallon v. Moog, 121 Ala. 305, 25 So. 584, the court, speaking through Dowdell, J., said: "The effect of the act in question is in certain cases of forcible entry and unlawful detainer where the possession of the defendant is not acquired by virtue of any contract or agreement with the plaintiff, or by force, to convert the proceedings into statutory action of ejectment." And in the case of Cooley v. U.S. Saving Co., 144 Ala. 538, 39 So. 515, this court treated the proceedings, after removal to the circuit court, as a statutory action of ejectment. We therefore hold that a judgment upon the title in this proceeding has the same force and effect and is in fact a judgment in ejectment, and there is nothing in the statute to make it conclusive or more effectual than the ordinary judgment in ejectment was prior to the enactment thereof. The only relevancy for the judgment and proceedings in the former case was to show res judicata, and, as said judgment was not available as such in a second action, the trial court did not err in excluding same. Whether or not the judgment and proceedings were admissible as evidential facts for any purpose upon the second trial we need not decide, for there was but one issue in the case, the sanity vel non of the grantor to a certain deed, except the defendant's suggestion of adverse possession, and whether the former judgment could or could not have any bearing on the question of adverse possession for three years matters not, as the suggestion was not controverted and the issue was found in favor of the appellants.

Where the question of insanity is a fact in issue, a nonexpert witness may give his opinion that a person is sane or insane only when it is shown that he has had long and intimate acquaintance in contradistinction to a casual acquaintance and occasional conversations and interviews with the person. Dominick v. Randolph, 124 Ala. 557, 27 So. 481; Burney v. Torrey, 100 Ala. 172, 14 So. 685, 46 Am. St. Rep. 33. The witness Shaw testified that he knew John P. Fowler in 1892, that he was at the quarantine station with him for 10 months, would see him every day, and talked to him very often (not casually or occasionally). There was no error in permitting this witness to testify as to the mental condition of said John P. Fowler.

The vital question in this case was the sanity of John P. Fowler when he made the deed of December 26, 1888, to George and Cornelius Fowler. Cornelius Fowler, one of the grantees to the deed, had testified as a witness for the plaintiff, and upon cross-examination did not remember whether John Fowler was or was not conscious on December 26, 1888, the date of the deed. He was a grantee in the deed which recited the expenditure of money by the grantees for the benefit of the grantor and love and affection as the consideration, and he, within a few months thereafter,

conveyed his...