Simmons v. Cochran, 7 Div. 993.

• Court: Supreme Court of Alabama
• Citation: 41 So.2d 579,252 Ala. 461
• Docket Number: 7 Div. 993.
• Parties: SIMMONS v. COCHRAN et al.
• Decision Date: 23 June 1949

41 So.2d 579

252 Ala. 461

SIMMONS
v.
COCHRAN et al.

7 Div. 993.

Supreme Court of Alabama

June 23, 1949

[252 Ala. 462] [41 So.2d 580]

Robinson & Parris, of Gadsden, for appellant.

T. Eric Embry, of Birmingham, for appellees.

Count 1 claims damages for trespass upon the lands described and for cutting timber to the amount of 169 trees thereon during the year 1947.

Count 2 Claims damages 'for this, that heretofore, during the year 1947 the defendant, or others by his authority and direction, did enter upon the following tract of land to-wit: * * * and did wilfully

and knowingly cut therefrom 169 trees during the year 1947, without the consent of the owner of said trees; the plaintiffs aver that at the time of the cutting of said timber, they had the legal title to said premises.'

The gravamen of count 4 is that during the year 1947 the servants or employees of defendant, while in the line and scope of their employment, did trespass upon the lands described, which were owned by or in possession of plaintiff, and cut therefrom 169 trees; and that said servants or agents, etc., did wantonly or wilfully and wrongfully cut and remove said trees from said lands.

LAWSON, Justice.

Action by Mary Cochran and others against W. P. Simmons for trespass to [252 Ala. 463] realty, trespass to personalty, and for the statutory penalty for cutting trees.

There are fifteen assignments of error. Appellees strenuously insist that appellant's brief should be stricken and the judgment of the trial court affirmed because of the failure of the appellant to file in this court a brief in compliance with Supreme Court Rules 10 and 12, Code 1940, Tit. 7, Appendix, which prescribe the form and manner of the preparation of briefs by appellants. It is true that the brief filed on behalf of appellant does not strictly conform to the aforementioned rules, yet we do not think that it should be stricken. Counsel representing appellants should make every effort to comply with Rules 10 and 12, for a brief prepared in substantial adherence thereto is of considerable assistance to the appellate courts. We might add that we note a growing tendency on the part of many attorneys to file briefs which do not serve the purposes for which the rules were adopted. But those rules are directory, and this court has exercised its discretion in the consideration of briefs which, although not drafted in accordance with the requirements of the rules, fairly and helpfully make the points upon which appellant relies. Bell v. Fulgham, 202 Ala. 217, 80 So. 39; Brothers v. Brothers, 208 Ala. 258, 94 So. 175; Nunnally Co. v, Bromberg & Co., 217 Ala. 180, 115 So. 230. Under the practice thus established, the brief for appellant has been considered. But appellant's brief deals only with the actions of the trial court made the basis of assignments of error 2, 3, 4, and 10. Hence, the other assignments of error must be treated as waived. McDavid v. United Mercantile Agencies, 248 Ala. 297, 27 So.2d 499, and cases there cited.

Assignments of error 2 and 3 complain of the trial court's action in overruling objections of the defendant to questions which evidently had the purpose of showing that the parties who cut the timber did so as agents of the defendant. Even if it be conceded that there was error in such rulings, which we do not decide, such error was without injury to the appellant, defendant below. Such relationship was definitely established by testimony of defendant's own witnesses. Any error in the admission of testimony as to a fact which is shown by the undisputed evidence is error without injury. Southern R. Co. v. Hall, 209 Ala. 237, 96 So. 73; Bevill v. Henergar-Dooley Shoe Co., 209 Ala. 262, 96 So. 133; Cosby-Hodges Milling Co. v. Nance, 33 Ala.App. 48, 29 So.2d 575.

The trial court did not err in permitting plaintiff's witness Albert Looney to testify, in effect, that in his judgment three twelve-foot 'logs' could be cut from each of the trees felled. This was but...