Roden v. Capehart

• Decision Date: 16 December 1915
• Docket Number: 8 Div. 804
• Citation: 70 So. 756,195 Ala. 29
• Parties: RODEN et al. v. CAPEHART.
• Court: Alabama Supreme Court

70 So. 756

195 Ala. 29

RODEN et al. v. CAPEHART.

8 Div. 804

Supreme Court of Alabama

December 16, 1915

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Ejectment by S.C. Capehart against A.P. Roden and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Street & Isbell, of Guntersville, for appellants.

John A Lusk & Son, of Guntersville, for appellee.

THOMAS J.

The suit is in the nature of ejectment, for the recovery of land specifically described, to meet the objection pointed out by this court on former appeal. Roden et al. v Capehart, 185 Ala. 579, 64 So. 590.

The complaint as amended is as follows:

"The plaintiff sues to recover possession of the following tract of land to wit: A strip of land lying on the east side of lot No. 8 on the south side of the Tennessee river, known as the Kitchens, Randall, or Capehart lot, lying and being in Marshall county, Ala., fronting on the north side of the public road from Guntersville to Deposit, Ala in said county, bounded on the east by lot No. 7, known as the Jackson lot, said lot being 120 feet wide on the north end of said lot, and running back in a southwardly direction 360 feet, and said strip of land of which the defendant is so wrongfully in possession being 25 feet on the east side on said lot extending from the public road to the south end of said lot of which he, the plaintiff, was in the possession, and upon which, pending such possession, and before the commencement of this suit, the defendant entered, and unlawfully withholds, together with $300 for the detention thereof."

The defendants disclaimed possession, and suggested:

"That the fine location of the line is a straight line touching the westernmost point of the storehouse and the westernmost point of the dwelling house, and extending from the northern to the southern boundary of lots Nos. 7 and 8."

To this disclaimer and suggestion of the true line the plaintiff replied:

"That the true boundary line commences at the northeast corner of where an old warehouse formerly stood on lot 8, and running south just by an old chimney place of a house once occupied by Clem Chisolm to the south boundary line of said lot 8, and the true line is two feet east of west side of a storehouse, and four feet east of east side of the only dwelling house on lot 8."

The judgment entry states the issue on which the trial was had, and the verdict rendered as follows:

"Defendants disclaim possession of land sued for in plaintiff's complaint and suggest in their disclaimer that the suit arises over a disputed boundary line. Defendants withdraw their plea of not guilty heretofore filed in this cause, and issue of location of true boundary line being made up under the direction of the court. Thereupon come a jury," etc., and say: "We, the jury, find the issues in favor of the plaintiff, and we find the location of the true boundary line in dispute to be as set forth in plaintiff's claim."

The statutory authority for an issue to be made up by the court on such plea of disclaimer and "suggestion to the court that the suit arose over a disputed boundary line" is provided in section 3843 of the Code of 1907. This statute, as an amendment of section 1533 of the Code of 1896, was intended to remedy the difficulties pointed out by Mr. Justice Stone in McQueen v. Lampley, 74 Ala. 408.

In the instant case, after the jury had returned a verdict in favor of the plaintiff, the defendants sought to file an additional plea of "not guilty" as to the land lying between the line described in defendant's plea and suggestion and the line described in plaintiff's claim. The refusal of the court to allow such plea is assigned as error. In Hanchey v. Brunson, 181 Ala. 453, 61 So. 258, the right of amendment during the progress of the case and without cost or delay, unless an injustice will thereby be done the opposite party, is declared. After verdict has been rendered a cause is not "in progress," in such sense that the right to amend pleadings exists. Martin v. Howard. 68 So. 982. It has been held that the refusal of the trial court to allow additional pleas after evidence is the exercise of a discretion that will not be revised. Craig & Co. v. Pierson L. Co., 179 Ala. 535, 60 So. 838; Decatur Co. v. Foster, 161 Ala. 176, 49 So. 759; L. & N.R.R. Co. v. Wynn, 166 Ala. 418, 51 So. 976; Leader v. Mattingly, 140 Ala. 444, 37 So. 270; Howard v. Martin, 181 Ala. 613, 62 So. 99.

The complaint as originally filed claimed "25

feet, more or less, on the east side of lot No. 8 on the bank of the Tennessee river, known as the Kitchen or Randall or Capehart lot," and as amended on this trial described specifically the property the subject of this suit in the complaint as first filed. The amendment of the complaint was properly permitted. Code 1907, § 5367; Brown v. Loeb, 177 Ala. 106, 58 So. 330; Baranco v. Birmingham Term. Co., 175 Ala. 146, 57 So. 434; Floyd v. Wilson, 163 Ala. 283, 50 So. 122; Gaines v. B.R., L. & P. Co., 164 Ala. 6, 51 So. 238; Manistee Mill Co. et al. v. Hobdy, 165 Ala. 411, 51 So. 871, 138 Am.St.Rep. 73; Ala.Con.C. & I. Co. v. Heald, 154 Ala. 580, 45 So. 686; Johnson v....