Smith v. Collier
| Decision Date | 07 June 1923 |
| Docket Number | 5 Div. 847. |
| Citation | 210 Ala. 23,97 So. 101 |
| Parties | SMITH ET AL. v. COLLIER ET AL. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Elmore County; B. K. McMorris, Judge.
Action by J. H. Collier and others, as trustees of the Carolina Methodist Episcopal Church South, against John A. Smith, Sr. Rufus Gilliland, and Mack Gilliland. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.
F. Loyd Tate, of Wetumpka, for appellants.
Holley & Milner, of Wetumpka, for appellees.
This is a suit by J. H. Collier and others as trustees of the Carolina Methodist Episcopal Church South against John A Smith, Sr., and others; the several counts of the complaint claiming damages for willfully and knowingly, without their consent, cutting 40 trees or saplings on land owned by plaintiffs, for damages for cutting trees on their land, for damages for trespassing on the land and removing trees therefrom, and for converting the trees.
The jury returned a verdict in favor of plaintiffs, assessed their damages at $1, and the court rendered judgment thereon in favor of plaintiffs and against defendants for $1 damages and $1 of the cost, and taxed the balance of the court cost against plaintiffs. From this judgment the defendant John A. Smith, Sr., alone prosecuted this appeal.
The plaintiff moves to dismiss this appeal because the judgment was rendered against three defendants while only one appealed from it, and no notice thereof was given the other two codefendants.
In this case on motion of appellee, the defendant J. A. Smith, Sr., was required by this court to give new appeal bond within 15 days from April 18, 1923, which appeal bond was given by all of the defendants. This bond is now on file in this cause, and was here when the case was submitted. The other two codefendants, by joining in this appeal bond, signing it as principals, voluntarily appeared in this court in this cause, and rendered it unnecessary for summons to issue by the clerk of the court below or by this court, notifying them of this appeal and to appear and unite in it if they saw proper. By signing this appeal bond as principals, they waived notice thereof and united therein. L. & N. R. Co. v. Shikle, 206 Ala. 494, headnote 8, 90 So. 900; Birmingham v. Hawkins, 196 Ala. 127, headnote 7, 72 So. 25; Peebles v. Weir, 60 Ala. 413, headnote 1; Oliver v. Kinney, 173 Ala. 593, 56 So. 203; section 2884, Code 1907, amended Gen. Acts 1911, p. 589. On April 12, 1923, the clerk of the court below issued notice of the appeal to these two defendants, and their attorney of record accepted service thereof on April 13, 1923. This original notice with acceptance of service thereof by the attorney is on file in this court. The motion of appellees to dismiss the appeal is refused.
This is the second appeal in this case. Smith v. Collier, 207 Ala. 635, 93 So. 648.
The plaintiffs claim title to the land and trees by adverse possession. To maintain this suit they must own the lands on which the trees were growing or they must own the trees or own both the land and the trees. Sections 6035, 6036, Code 1907, and authorities there cited.
The evidence shows without dispute that Alex Smith, father of defendant (appellant) owned this land and was in possession of it in and prior to 1857; that it was a part of 80 acres which the tract book shows was obtained from the United States government on August 14, 1837, by said Alex Smith and his cousin Malcolm Smith. J. H. Collier, one of the plaintiffs, a trustee of the church, is 67 years old, and testified on cross-examination:
"That this property [the church property in question] first came from Mr. Smith; that they first got possession of it from Mr. Smith's father from an old deed; that the church has claimed possession for the past 45 years, and that it claimed its possession from the Smiths-first from Mr. Smith's father, old man Alex Smith."
This evidence on motion of plaintiff was excluded by the court on the ground the witness stated this was information received by him; he did not know of the deed of his own personal knowledge. In this the court erred; it was germane to the issue. He was a trustee of the church, party plaintiff to the suit as trustee. He was 67 years old, had known this property ever since he could recollect, having always lived within five miles of it. The evidence tended to show plaintiff and its officials had notice of the deed, who made it, how they got possession of the property, and that it came through the deed from Alex Smith, that plaintiff was claiming possession under the deed, and that plaintiff was not claiming adversely to Smith. Witness further testified "that he never saw the old deed of Alex Smith to the church property until he saw it in court on the former trial of this cause." William Grier, witness for defendants, testified that he was a grandson of one McNealy, who was a local preacher of the Carolina Methodist Episcopal Church, a member of that church, and that he found this old deed of Alex Smith to the Methodist Episcopal Church dated April 9, 1857, in his grandfather's papers; McNealy having died in 1886 or 1887. There was evidence that McNealy was a trustee of this church and also pastor of it, and that Alex Smith delivered the deed to him, which was duly recorded in 1857.
The old deed was dated April 9, 1857, and was filed and recorded in Book of Deeds lettered J, on page 106, on April 21, 1857, by A. A. McMillan, as judge. It was found in the papers of McNealy after his death in 1886 or 1887, by his grandson William Grier. When these trees were cut and when this suit commenced, the deed was in the possession of William Grier, the grandson of said McNealy. The evidence was clear that Alex Smith signed the deed; the signature being in his handwriting. Alex Smith died in 1871. He was a Presbyterian, and one of the elders of the Presbyterian Church located on this property, which church building burned prior to 1857. Alex Smith, his wife, and some of his children are buried in the cemetery near the church building. He has seven children still living, of whom the defendant John A. Smith is one. The deed was introduced in evidence, and, according to the record, is as follows:
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