Revel v. Prince

• Decision Date: 09 February 1954
• Docket Number: 5 Div. 435
• Citation: 37 Ala.App. 457,69 So.2d 470
• Parties: REVEL et al. v. PRINCE.
• Court: Alabama Court of Appeals

Page 470

69 So.2d 470

37 Ala.App. 457

REVEL et al. v. PRINCE.

5 Div. 435.

Court of Appeals of Alabama.

Feb. 9, 1954.

J. A. Walker, Jacob Walker, Jr., Walker & Walker, Opelika, for appellants.

Denson & Denson, Yetta G. Samford, Jr., Opelika, for appellee.

HARWOOD, Judge.

On appeal from the Court of Common Pleas of Lee County this cause was tried de novo in the Circuit Court of Lee County.

The defendant, Homer Revel, having died before trial in the Court of Common Pleas the suit was revived against the present defendants as administrators of the estate of Homer Revel, deceased.

In the circuit court the case was tried on counts A, B, C, and D of the complaint, being the same counts upon which the case was tried in the Court of Common Pleas.

Issue was joined on a plea of in short by consent.

The appellants here occupied the position of defendants in both of the lower courts.

During the arguments to the jury the court struck out counts B, C, and D, and submitted the case to the jury only on count A.

At the conclusion of the arguments the court gave at plaintiff's request the general affirmative charge with hypothesis, instructing them to fix damages at their discretion at not less than one cent nor more than $490, the amount claimed as damages in count A.

Count A in substance claimed $490 as damages for that livestock belonging to the defendant at divers times after January 1, 1952, trespassed on certain described premises of the plaintiff and damaged growing crops belonging to the plaintiff.

The jury returned a verdict in favor of the plaintiff and assessed damages at $365, judgment being entered pursuant to such verdict.

Appellants' motion for a new trial being overruled appeal was perfected to this court.

During the trial below it was agreed by counsel for the respective parties that the damages, if any, claimed in count A were inflicted during the first six months of 1952. Since count A was the only count submitted to the jury we will confine our review to such part of the evidence tending as it pertains to count A.

The plaintiff below, who is appellee here, testified that the cattle belonging to Homer Revel were at large practically all of the time during the first six months of 1952, and that one occasion in March 1952 sixteen of the Revel cattle came onto his premises and ate up, and completely destroyed, an acre of manganese clover which he was saving for seed.

The value of this clover, according to Mr. Prince, was $250.

Mr. Prince further testified that during this period in 1952 the Revel cattle damaged his fences to the extent of $37.

There was other evidence presented by the plaintiff to the effect that the Revel cattle ate up and destroyed some 25 or 30 acres of Johnson grass and cane growing in a bottom on appellee's land. While evidence was introduced tending to show the value of this forage eaten in 1950 and 1951, said evidence being introduced under the counts that were later stricken, there is no evidence whatsoever tending to show the value of this forage that may have been damaged during the first six months of 1952, the only evidence even remotely pertaining to this question being the testimony of R. R. Prince that he had seen the Revel cattle in the bottom during the first six months of 1952 'just rambling like cows do.'

The plaintiff presented further evidence tending to show that the fence on Revel's place was in bad condition in two places, through which the cows were seen to go.

There was also evidence offered by the plaintiff to the effect that the Revel cows 'ran like rabbits' when he attempted to capture them.

For the defense C. O. Revel testified that he was a nephew of Homer Revel, the original defendant; that he visited his uncle's place once or twice a month during the period of time in question. During these visits he would walk out into the pasture probably every other time, and his uncle's cattle were always in his pasture. Mr. Revel further testified that he had walked around the pasture a number of times and did not see any place where the cows could have gotten out.

The time of these inspection trips is not shown by the record.

Mr. Ernest Revel, a brother of the original defendant, testified that he would visit his brother 'sometimes twice a week, sometimes not so often' in 1952. On these visits he observed the cows in his brother's pasture.

Mr. Revel further testified that the fence was in good shape.

On cross-examination Mr. Revel testified that he never walked around the pasture to inspect the fence, and the only part of the fence he observed was the portion where he would go through to enter the pasture.

None of this evidence tends to contradict the appellee's evidence that the appellant's cattle were on appellee's premises and did damage his crops.

Appellants' assignments of error numbers 3, 4, and 5 relate to the action of the court in refusing appellants' requested charges 1 and 2, which are respectively affirmative in nature, and in denying appellants' motion of dismissal made at the conclusion of the evidence.

Counsel for appellant asserts error infected the rulings of the trial court in the above instance because the complaint as originally filed in the Court of Common Pleas of Lee County contained four counts, A, B, C, and D, each of which respectively claimed damages of $490, thus aggregating $1960, an amount beyond the jurisdiction of the said Court of Common Pleas, inasmuch as the act creating the Court of Common Pleas of Lee County provides that said court 'shall not have jurisdiction of any civil action when the matter or sum in controversy exceeds five hundred dollars ($500)'. See 1949 Acts of Alabama, Regular Session, p. 361.

No objection to the jurisdiction was interposed in the proceedings in the Court of Common Pleas of Lee County, which rendered a judgment in favor of the plaintiff, appellee here, and from which judgment the defendants, appellants here, perfected their appeal to the Circuit Court of Lee County.

While the aggregate amount of the several counts on independent causes of action determine the amount sued for for jurisdictional purposes, Wood v. Traders' Securities Co., 221 Ala. 629, 130 So. 398, it is firmly settled by our decisions dealing with appeals or certiorari from justice of the peace courts to the circuit court that objection to the jurisdiction of the justice court, to be availing, must be made in the justice court, since the cause is tried de novo in the circuit court. Glaze v. Blake, 56 Ala. 379; South & North Alabama R. Co. v. Pilgreen, 62 Ala. 305; Western Ry. Co. v. Lazarus, 88 Ala. 453, 6 So. 877; Louisville & N. R. Co. v. Barker, 96 Ala. 435, 11 So. 453.

Counsel for appellant contends that the doctrine of the above cases can have no application to the present case inasmuch as jurisdiction is 'conferred' upon the justice courts, not to exceed $100 in civil cases, whereas in the act, supra, creating the Court of Common Pleas of Lee County it is provided that said court 'shall not have jurisdiction' where the sum in controversy exceeds $500.

The tenuity of this contention denies its merit. The distinction sought to be pressed is merely a distinction without a difference. Particularly is this true in light of the further provision in Section 9 of the Act, supra, creating the Court of Common Pleas of Lee County, that appeals from such court are to be taken according to the rules provided for justice courts.

Appellants' assignment of error number one relates to the action of the court in giving to the jury appellee's request for the general affirmative charge with hypothesis.

Section 79 of Title 3, Code of Alabama 1940, provides that:

'The owner of such livestock or animal being or running at large upon the premises of...