Watson v. Kirkland

• Decision Date: 18 November 1920
• Docket Number: 4 Div. 877
• Citation: 204 Ala. 655,87 So. 93
• Parties: WATSON v. KIRKLAND et al.
• Court: Alabama Supreme Court

87 So. 93

204 Ala. 655

WATSON v. KIRKLAND et al.

4 Div. 877

Supreme Court of Alabama

November 18, 1920

Appeal from Circuit Court, Covington County; A.B. Foster, Judge.

Bill by Wright E. Watson against S.S. Kirkland and others to enjoin the obstruction of a public road. Decree for complainant, and respondents appeal. Affirmed.

E.O Baldwin, of Andalusia, for appellants.

A Whaley, of Andalusia, for appellee.

McCLELLAN J.

The appellant (complainant) filed this bill against the appellees seeking the removal of an obstruction, placed by appellees in a way averred to be a public road. After modifying, on accelerated hearing, the injunction issued on the bill, it appears from the record, under date May 20, 1919, that in open court the cause was "submitted for final decree upon pleadings and testimony noted by the register and held for decree in vacation." On September 2, 1919, upon consideration "in open court," decree was rendered denying relief and dissolving the injunction. The complainant (appellant) thereupon moved the court, apparently "in open court," to reinstate the injunction pending this appeal, and this order was entered as a part of the decree of September 2, 1919. On July 15, 1919, complainant (appellant) filed an amendment to his original bill changing the description of the road alleged to be obstructed. If it is assumed (for the occasion only) that the effect of provisions of sections 1 and 3 of the act approved September 22, 1915 (Gen.Acts 1915, p. 706; S.S.S. & I. Co. v. Yancey, 201 Ala. 200, 77 So. 726) was to constitute this paper an amendment of the original bill, since it was filed "before final decree"--no answer or decree pro confesso as upon the thus amended bill being filed or taken--this appellant can gain no advantage therefrom, for the reason that, though the actor in the cause and having the obligation to sustain, at least prima facie, the material allegations of his bill, he acquiesced, if not participated in open court, in an effort to submit his cause without a note of testimony (to accept for the occasion only his contention that no note of testimony was made by the register), thus leaving his bill, original or amended, without evidential support in material particulars, in consequence of which the court could only decree in denial of the relief sought by the complainant. Certainly, in such circumstances, a complainant cannot successfully invoke a reversal of the...