Ruple v. Jones, 1 Div. 837

• Decision Date: 21 January 1960
• Docket Number: 1 Div. 837
• Citation: 270 Ala. 282,117 So.2d 389
• Parties: J. L. RUPLE v. J. B. JONES.
• Court: Alabama Supreme Court

Page 389

117 So.2d 389

270 Ala. 282

J. L. RUPLE v. J. B. JONES.

1 Div. 837.

Supreme Court of Alabama.

Jan. 21, 1960.

Jas. R. Owen, Bay Minette, for appellant.

Norborne C. Stone, Jr., Bay Minette, for appellee.

MERRILL, Justice.

Appeal from a judgment in favor of the defendant below which was based upon a verdict resulting from the giving of the general charge with hypothesis in favor of the appellee, J. B. Jones.

The amended complaint consisted of twelve counts, wherein damages were sought against defendants Jones and Givens for cutting and removing pine timber from appellant's land, and for the statutory penalty for cutting 301 trees from the property of appellant without his consent.

In counts 'one' through 'four' appellee was sued jointly with Givens; in counts 'five' through 'eight' appellee was sued individually; and in the other counts, Givens was sued individually. Each of the defendants pleaded the general issue.

After appellant rested, appellee rested and requested the general charge as to counts one through eight, and the court granted this request. Appellant then took a nonsuit as to defendant Givens and the jury returned a verdict in favor of appellee.

The first assignment of error is that the court erred in denying appellant's motion to issue, under Tit. 7, § 489, Code 1940, a subpoena duces tecum to defendants, requiring them to bring into court all records, etc. which would indicate the amount of lumber or trees sold by either to Scott Paper Co. during the week of March 24-29, 1958

The court did not err because Tit. 7, § 489, deals with the production fo papers by persons not a party to the cause. The section was not applicable to the parties defendant. Parties are controlled by Tit. 7, § 426, Code 1940.

Assignment of error 2 complains of the exclusion of a purported admission by the appellee. In the cross-examination of appellant, the following occurred:

'Q. Do you know of your own personal knowledge that the defendant, J. B. Jones cut some trees on your property? A. He admitted to it in Mr. Owen's office with he and I present----'

Appellee objected on the grounds that the conference in attorney Owen's office was for the purpose of discussing a settlement and was not admissible.

The court excluded the answer as not being respondive since the witness had 'no personal knowledge.' It is a fact that appellant had testified that he was out of town when the alleged trespass occurred, and could not have had personal knowledge of it. The ruling was correct.

Assignment 6 complains of the court's refusal to allow appellant to introduce the deposition of defendant Givens under the provisions of Act No. 375, Acts of Alabama 1955, page 901, listed in the pocket parts as Tit. 7, § 474(1)-(18). The deposition had been taken while Givens was in the status of a witness, but later he was made a party defendant.

The entire deposition was not offered but only certain extracts or portions from the deposition. In brief, appellant urges that it was error to exclude the following offered portion of the deposition:

'Q. Now Mr. Givens, in March of this year, or on or about March 26, 1958, did you cut some pulp wood or timber on lands which were represented to you to be the lands of Mary Grice or her father, Charles Dudley Grice? A. Yes sir.

'Q. Were you cutting this pulp wood under contract with any one, or did you buy the pulp wood--either one--did you buy the pulp wood from the Grices? A. No sir.

'Q. Did you contract to cut that pulp wood? A. Yes sir.

'Q. With whom did you contract to cut that pulp wood? A. With J. B. Jones.

'Q. The Mr. J. B. Jones that is here this afternoon? A. Yes sir.'

Counts 'one,' 'two,' 'four,' 'five,' 'six' and 'eight' described the property by legal description and averred that the land and the trees were the property of the plaintiff. Counts three and seven are in trover but also allege that the trees were the property of the plaintiff. It will be noted that Givens testified that the timber or pulpwood he cut was on lands represented to him as belonging to Mary Grice or Charles Dudley Grice. But the Grices are not parties to this suit. We have examined all of the proffered extracts and nowhere is the land identified as the land described in the...