Shepherd v. Parker

• Decision Date: 17 December 1908
• Citation: 47 So. 1027,157 Ala. 493
• Parties: SHEPHERD v. PARKER.
• Court: Alabama Supreme Court

47 So. 1027

157 Ala. 493

SHEPHERD v. PARKER.

Supreme Court of Alabama

December 17, 1908

Appeal from Circuit Court, Montgomery County; Ray Rushton, Special Judge.

Unlawful detainer by H. H. Parker against Ella Shepherd. From a judgment for plaintiff, defendant appeals. Affirmed.

A suit was instituted by H. H. Parker, and was afterwards amended by inserting the words, after H. H. Parker, "for the use of Mark D. Brainard," to whom Parker had sold and deeded the property. The facts tended to show that the property was once the property of George Singo, the grandfather of Will and Ella Shepherd; that the property was set aside to Dorcas Singo, the widow of George, and she conveyed the property to Parker. Will Singo and Mike Shepherd attorned to Parker as landlord, but Ella Shepherd did not. The evidence was in conflict as to whether Ella Shepherd was holding in her own right, or as to whether she was there under her brother, who attorned to Parker. Before suit was brought, but while defendants were in possession, Parker conveyed to Brainard. The demand was made upon Ella Shepherd, Mike Shepherd, and Will Singo to vacate by H. H. Parker. Objection was taken that Parker, having parted with the right of possession should not make the demand.

Warren Reese, for appellant.

Goodwyn & McIntyre, for appellee.

McCLELLAN J.

There was no submission on motion to dismiss this appeal; hence the reference thereto in brief is a mere suggestion, upon which this court cannot act.

The point that the sureties on the defendant's appeal bond from the justice's to the circuit court should have joined in the appeal to this court cannot be taken ex mero motu, since the objection was waived by the submission on the merits. See Sellers v. Smith, 143 Ala. 566, 39 So 356.

The demand upon appellant to deliver the possession was properly given by Parker, Brainard's grantor, pending the life of the alleged lease of the premises. Kennedy v. Hitchcock 4 Port. (Ala.) 230.

The record does not disclose an exception to the action of the court in allowing the amendment, adding the expression "for the use of Mark D. Brainard." Hence that action cannot be reviewed. Brainard, the purchaser from Parker, could not maintain the suit, and therefore it was properly instituted by Parker, the lessor. Dwine v. Brown, 35 Ala. 596.

There was testimony presented from which the court below (the trial was without jury) might infer the...