Williams v. Lyon
Decision Date | 13 February 1913 |
Citation | 181 Ala. 531,61 So. 299 |
Parties | WILLIAMS v. LYON. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.
Action by Emily C. Lyon against Homer K. Williams in trespass and as a penalty for cutting trees. Judgment for plaintiff, and defendant appeals. Affirmed.
The first count is as follows: "Plaintiff claims of defendant $500 damages for that the defendant did heretofore without the consent of the plaintiff, on, to wit, July 1 1910, cut down and carry away 97 pine trees from the south half of southeast quarter, section 13, township 7, range 3 west, and did also remove from said land 12 pine logs which were already down, which lands were the property of the plaintiff, to the damage of the plaintiff, as above stated." The second count was exactly like the first except that it alleges that the lands were in the possession of the plaintiff. The third count is like the first, except that there is no allegation as to the ownership of the land or the possession thereof, but it is alleged that the trees and logs were the property of the plaintiff. The verdict was for $16 damages; and, on motion of plaintiff, the court filed the certificate as provided by section 3663 of the Code, to which action the defendant excepted.
It was admitted that both sides claim from a common source, one Garland M. Dees, and that the title to land was vested in said Dees. It was admitted that certain books were the minutes of the court; and the plaintiff offered in evidence the record from minute book 25, p. 285, of the circuit court, a judgment rendered on January 17, 1882, in favor of Wollner & Co. against Garland M. Dees for $486.32. Conrad, a witness for the plaintiff, testified that he was deputy clerk of the circuit court and had made diligent search in the records of the court and among the papers for the execution which was issued on said judgment, and had not been able to find it, whereupon the plaintiff offered a book shown to be the execution docket of the circuit court of Mobile county, at page 171, showing execution on the judgment previously offered, a levy on certain real estate, including the land in question, an advertisement of the same for sale, the sale thereof to William Otis, who was the highest, best, and last bidder, and the execution of a deed to said Otis.
R. Percy Roach, of Mobile, for appellant.
Ervin & McAleer, of Mobile, for appellee.
Each count of the complaint is a kind of hybrid. Some of the allegations are appropriate for counts to recover the statutory penalty for cutting down or destroying trees; other allegations appear as if the count was for common-law trespass to land; and still others would indicate that it was for trespass in taking chattels. Neither of the counts follows strictly any of the forms given in the Code; but each contains some allegations appropriate to several of the Code forms. There was, however, no special ground of demurrer taking this point; the demurrers merely pointing out defects which would render the count bad as to one form given in the Code.
A defendant has no right to require a plaintiff to declare in any particular form of action; but he has the right to be informed as upon which particular form of action the plaintiff intends to proceed. A plaintiff has no right to so frame or form his counts as to leave it doubtful or uncertain what cause or kind of action he intends to charge against the defendant; but, if a count states a good cause of action, it is not subject to demurrer because it does not state a definite cause of action, but it may be for uncertainty or indefiniteness as to the particular action it states.
Neither count of the complaint alleges in terms that the defendant had trespassed upon the lands of the plaintiff, nor that he had wrongfully cut or carried away timber or trees of the plaintiff; but it is alleged that the trees and logs in question were cut and carried away from the lands of the plaintiff by the defendant, and without her consent.
It is also true that the complaint does not allege, in terms, that the plaintiff was in the possession of the lands in question; but it is alleged that she was the owner, which imputes constructive possession, nothing else appearing, and such possession is sufficient to support trespass against a mere trespasser.
Some of the counts fail to allege that the plaintiff was the owner of the timber cut and carried away, but these do allege that she was the owner of the land, and, nothing else appearing, she will be presumed to have been the owner of the trees growing thereon and of the timber lying thereon. We are not willing to say that the trial court erred in overruling the defendant's demurrer to any count, but remark, in passing, that it is a much safer practice to follow the simple forms prescribed in the Code for such actions.
We do not think that the court erred in admitting in evidence the entries in the execution docket of the circuit court. It was shown that the original execution could not be found after diligent search in the proper place. These entries were therefore certainly the next best proof of the execution under which the lands in question were sold.
In the case of Baucum v. George, 65 Ala. 266, it was said by this court:
What was said above is strictly applicable to this case.
Moreover sections 3986 and 3995 of the Code make such evidence admissible. If a transcript of the record was admissible, then surely the record itself was admissible. This is one of those unfortunate cases in which...
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