Spears v. Wise

• Decision Date: 11 June 1914
• Docket Number: 501
• Citation: 187 Ala. 346,65 So. 786
• Parties: SPEARS v. WISE et al.
• Court: Alabama Supreme Court

65 So. 786

187 Ala. 346

SPEARS v. WISE et al.

No. 501

Supreme Court of Alabama

June 11, 1914

Appeal from Circuit Court, Coffee County; H.A. Pearce, Judge.

Ejectment by John F. Wise and others against J.H. Spears. Judgment for plaintiffs, and defendant appeals. Appeal dismissed.

The land sued for is described in the opinion. The verdict of the jury found for the plaintiff for the land sued for, to wit W. 1/2 of S.W. 1/4 of S.W. 1/4, section 8, township 6, range 19, and S.E. 1/4 of N.W. 1/4, section 17, township 6, range 19, and N.E. 1/4 of N.W. 1/4, section 17, township 6, range 19, and 10 acres on the east line of S.E. 1/4 of S.E. 1/4 section 7, township 6, range 19, and N.W. 1/4 of N.W. 1/4 and N. 1/2 of S.W. 1/4 of S.W. 1/4, section 17, township 6 range 19. And the judgment follows the verdict.

W.W. Sandes, of Elba, O.C. Doster, Jr., of Enterprise, and H.L. Martin, of Ozark, for appellant.

J.A. Carnley, of Elba, for appellees.

ANDERSON C.J.

While the complaint in this case is for the 80 acres of land described as the N.W. 1/4 of S.W. 1/4 and S.W. 1/4 of N.W. 1/4 of section 12, township 3, range 19, in Coffee county, Ala., the verdict of the jury is for considerably more land and all of which is an entirely different description both as to section and township. It is true, the verdict finds the issue in favor of the plaintiffs for the land sued for, but it then proceeds to specifically describe the land as being an entirely different tract from the one sued for in the complaint. Had the verdict merely been for the land sued for, or as described in the complaint, and the judgment contained only a similar recital, they would be upheld by reference to the complaint. Webb v. Reynolds, 139 Ala. 398, 36 So. 15; Wiggins v. Steiner, 103 Ala. 655, 16 So. 8. But the verdict uses the words, "to wit" and then proceeds to describe the land. The phrase "to wit," in pleading is usually construed as stating the time, place, number, or manner, which are not of the essence of the matter in issue, so that they need not be proved strictly as laid. When not used in pleading for the above purpose, the general meaning of the phrase "to wit" seems to be:

"To particularize what is too general in the preceding sentence, and render clear, and of certain application, what might seem otherwise doubtful or obscure; words used to call attention to a more particular specification of what has preceded." 38 Cyc. pp. 591, 592.

In pleading, except when used to designate time, place, number or manner, the above definition quoted from 38 Cyc. seems to be the "appropriate office of the phrase." Kilgore v. Shannon, 6 Ala.App. 537, "In every case the judgment must follow the verdict and the successful party...