Smith v. Keyser

• Decision Date: 25 May 1897
• Citation: 22 So. 149,115 Ala. 455
• Parties: SMITH ET AL. v. KEYSER.
• Court: Alabama Supreme Court

22 So. 149

115 Ala. 455

SMITH ET AL. v. KEYSER.

Supreme Court of Alabama

May 25, 1897

Appeal from circuit court, Conecuh county; John R. Tyson, Judge.

Statutory action of ejectment by Harriett S. Keyser, as executrix of William J. Keyser, deceased, against A. G. Smith and others. From a judgment for plaintiff, defendants appeal. Reversed.

The defendant A. G. Smith was tenant in possession of the land sued for, and upon his motion, his landlords, R. L. Johnson William M. Johnson, and others, were made parties defendant.

The defendants pleaded the general issue, and adverse possession of the lands sued for for 10 years.

The defendants offered to introduce in evidence a deed from one A. J. Phelps and his wife to Bryant Johnson. This deed was executed November 23, 1869, and was attested by James W Simpson and James Reeves. A witness was introduced, who testified that James W. Simpson resided in Florida; that he knew the handwriting of Simpson; and that his name as an attesting witness to the deed was in his handwriting. It was also shown by another witness that James Reeves was dead.

The plaintiff objected to the introduction in evidence of this deed, upon the ground that its execution had not been sufficiently shown. The court sustained the objection refused to allow the deed to be introduced in evidence, and to this ruling the defendants duly excepted.

Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the general affirmative charge in their behalf; and to the giving of this charge the defendants duly excepted. There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

Farnham & Crum, for appellants.

J. J Sullivan and John D. Burnett, for appellee.

HARALSON J.

1. The first assignment of error is the ruling of the court excluding the deposition of A. J. Hawsey, deceased, who was called Jack Hawsey. The abstract states, that the "defendants offered to introduce in evidence the depositions of A. J. Hawsey, then deceased, taken in a former suit between these parties, which depositions are as follows," etc. The objection raised to the introduction of this evidence was, "because the parties to the suit in which they [the depositions] were taken were not the same as in this suit."

The offer of defendant was to introduce said deposition "taken in a former suit between these parties." A. G. Smith, the defendant in this suit, was a mere tenant in possession, and the other defendants were his landlords, who were made parties by order of the court, on suggestion of the tenant, under section 2700 of the Code. The depositions were taken in a cause as shown, wherein Harriett S. Keyser, executrix of William J. Keyser, was plaintiff and A. G. Smith was defendant, for the identical lands mentioned in this suit. The appellee's counsel state in their argument,-and it is the one on which they rest the point,-that the two suits were not between the same parties, for the reason, that the first one was brought in the name of Harriett S. Keyser, executrix, etc., and the last one was in her name as executrix; that the first was in her individual, and the last in her representative capacity, and the two suits were, therefore, between different parties.

Under the statute of amendments in this state, it is settled that when "a complaint is filed in the name of one suing in his individual capacity, if the facts authorize it, the complaint may be amended, so as to make the suit stand in his representative capacity, and vice versa." Lucas v. Pittman, 94 Ala. 616, 10 So. 603.

The abstract justifies the conclusion that Smith in the former as in this case was tenant, and the other appellants were the landlords, and the ones really interested.

In Patton v. Pitts, 80 Ala. 375, it was said, that the conditions on which such evidence is admissible in the trial of a subsequent suit "are that the matters in issue and the parties are essentially the same in both actions,-parties as thus used comprehending privies in blood, in law, or in estate. A mere technical or nominal variation of parties on both trials will not exclude the evidence; but the adversary parties on both trials must be substantially the same." Clealand v. Huey, 18 Ala. 343; Goodlett v. Kelly, 74 Ala. 213. The parties in both these suits were substantially or essentially the same, and it is not pretended that the adverse parties did not have and avail themselves of the opportunity to cross-examine the witness. Marler v. State, 67 Ala. 62; 1 Greenl. Ev. § 63. The variation of parties relied on is too technical or nominal for the exclusion of the evidence.

2. The deed from Phelps to Johnson was clearly admissible in evidence. It was witnessed by James W. Simpson and James Reeves. It was made sufficiently certain that James Reeves was dead, and that the other witness, Simpson, resided out of the jurisdiction of the court in Florida. His signature, if necessary to prove it after so great a length of time,-some 28 years,-was clearly proved,...