Page images
PDF
EPUB

charge is applicable here, and on the authority of that case the judgment of the circuit court will be affirmed.

Judgment affirmed.

GOGGINS v. MYRICK.

(Supreme Court of Alabama. Nov. 28, 1901.) HIGHWAYS-OBSTRUCTION-COMPLAINT

EVIDENCE-INSTRUCTIONS.

1. An action to recover damages for the alleged wrongful obstruction of a public road is personal in its nature, and therefore it is not necessary for the complaint to allege the location of said road with definiteness and accuracy, but it is only necessary to be so alleged as to notify the defendant of the cause of action.

2. In an action to recover damages for the wrongful obstruction of a public road, a complaint which alleges that the plaintiff's homestead and mills owned by the plaintiff, which abutted upon the public road so obstructed, were rendered much less valuable, and plaintiff was by reason of such obstruction greatly harassed and worried, and was put to great inconvenience and expense, shows a sufficient cause of action for the plaintiff's individual reparation, as distinguished from a suit in behalf of the public.

3. In an action to recover damages for the wrongful obstruction of a public road, where it is alleged in the complaint that the plaintiff's homestead and his mills, which abutted upon said public road, were rendered much less valuable, and the plaintiff was harassed and worried and was put to great inconvenience and expense, it is competent for the plaintiff to introduce in evidence testimony relating to the inconvenience caused to himself and family to visit the neighboring post office, church, and schools.

4. Where an entry is made upon a book which was not the record kept by the court of county commissioners, but is a docket kept by the commissioners themselves for their convenience, and it is not shown that said entry was made by the judge of probate by the order of the court of county commissioners, said entry cannot be introduced in evidence or considered as a judgment of the court of county commissioners.

5. Charges which assert correct propositions of law, but which are abstract as applied to the evidence of a particular case, should be refused, but the giving or refusal of such charges will not work a reversal of the judgment.

Appeal from city court of Birmingham; Chas. A. Senn, Judge.

Action by John T. Myrick against W. H. Goggins. Judgment for plaintiff. Defendant appeals. Affirmed.

The complaint contained three counts. The first count of the complaint was as follows: "The plaintiff claims of the defendant five thousand dollars damages, for that heretofore, to wit, on or about April, 1898, defendant wrongfully obstructed a certain public road which ran through section 29, township 15, range 4 west, and, as a proximate consequence thereof, plaintiff, whose homestead abutted upon said road, and who owned and operated a sawmill, gristmill, cotton gin, and wheat thresher upon land abutting upon said public road, was put to great inconvenience and expense in getting to and

from his said homestead and said enterprises, and in moving freight, live stock, machinery, grain, and other things to and from his said homestead, and to and from his said sawmill, gristmill, cotton gin, and wheat thresher, and access to which was rendered greatly more difficult and lengthy; and plaintiff lost a great amount of custom for his said sawmill, gristmill, cotton gin, and wheat thresher, and failed to make a great amount of money which he would otherwise have made by doing work for the public at said sawmill, gristmill, cotton gin, and wheat thresher, and plaintiff's said homestead, and his said sawmill, gristmill, cotton gin, and wheat thresher were rendered greatly less valuable; and plaintiff was greatly harassed and worried, and suffered great mental pain, and was put to great inconvenience and expense." The second count of the complaint was identical with the first, with the exception that it was alleged therein that the obstruction was placed across the public road by the defendant on the 13th day of November, 1899. The third count of the complaint was as follows: "Plaintiff claims of defendant the further sum of five thousand dollars damages, for that heretofore, to wit, on the 13th day of November, 1899, defendant wrongfully obstructed a road, to which and through which plaintiff had the right of access for himself, his family, and those desiring to transact business with plaintiff, to whom the use of said road was necessary or convenient, which said road ran through section 29, township 15, range 4 west, in Jefferson county, Alabama; and, as a proximate consequence thereof, plaintiff, whose homestead abutted upon said road, and who owned and operated a sawmill, gristmill, cotton gin, and wheat thresher, at which he sought the patronage of the public, suffered the injuries and damage set out in the first count of this complaint." To each count of the complaint the defendant demurred upon the following grounds: (1) It fails to aver the nature and character of the alleged obstruction; (2) said alleged public road is not sufficiently described in any of the counts of the complaint; (3) the plaintiff fails in each count to allege the facts upon which the damages claimed are based; (4) the damages claimed are not shown to be different in degree and kind from those suffered by the public at large; (5) the damages claimed are too remote, and are not the proximate consequences of the alleged wrongful obstruction. The defendaut also moved to strike from the first and second counts of the complaint the allegations thereof relating to the inconvenience and damages sustained by the plaintiff, upon the ground that the damages claimed were not shown to be the proximate consequences of the alleged obstruction, and were too remote. The motion to strike from the first and second counts of the complaint that portion of each count was overruled. The demurrer was sustained. Thereupon the plain

tiff amended his complaint by adding to each count thereof the following averment: "The said road was a part of the road formerly known as the 'Elyton and Jasper Road,' or the 'Warrior Trace,' and at the time of said obstruction was known as the 'Birmingham and Jasper Road,' or 'Old Birmingham and Jasper Road." To the complaint as SO amended the same demurrer was interposed. This demurrer was overruled, and the cause was tried upon issue joined on the plea of the general issue. On the trial of the cause the plaintiff introduced evidence tending to show that he had his residence along the public road, which was described in the amended complaint, and that his property abutted said road; that upon his land that abutted said public road he constructed and was operating a gristmill, sawmill, and cotton gin; that said road had been used as a public road for 20 or 30 years; that the defendant also owned and lived on his property which abutted said public road; and that at the time designated in the complaint the defendant obstructed said road by building a fence across it. The plaintiff then introduced evidence tending to show that the obstructions so erected across the road by the defendant necessitated those persons going to his gristmill, sawmill, or cotton gin going a longer route, and greatly inconvenienced him in the hauling of the products of his mill to market, and had occasioned him great loss and damage. The plaintiff, as a witness in his own behalf, testified that the building of the fence across the road by the defendant made it necessary for the plaintiff and those going to and from his places to go around the place across the defendant's property to a road which had been opened by the county; that in doing this it made it difficult and inconvenient for the plaintiff and his family, in reaching the post office, church, and school. The defendant objected to the testimony of the plaintiff as to the inconvenience to himself and family going to the post office, church, and school, and moved to exclude the same, upon the grounds that such special damages were not claimed in the complaint, and such testimony was irrelevant and immaterial. The court overruled the objection and motion, and to this ruling the defendant duly excepted. The defendant introduced evidence tending to show that he did not erect the fence across the road in question until after the new road had been opened up by the court of county commissioners of Jefferson county; that after the opening up of the new road the plaintiff and those going to and from his house and mills could use the old road to where the fence was built across the road, and then, by going across the defendant's land, get into the new road, which was well kept up and maintained by the county authorities; that the old road had fallen into disuse; and that the use of the Dew road as testified to by the plaintiff and his witnesses was much more convenient to

all parties concerned. George L. Young was introduced as a witness for the defendant, and testified that he was a member of the court of county commissioners of Jefferson county for 1898; that he remembered a proceeding being had before said commissioners' court looking to the discontinuance of the public road which ran by where the plaintiff and the defendant lived. After he had testified that his recollection was that the road had been discontinued on the application of several of the citizens residing along said road, he was asked on cross-examination if he did not, as such commissioner, tell plaintiff, some time in the year 1898, that the court of county commissioners did not discontinue all of the old road. The defendant objected to this question, the court overruled the objection, and the defendant duly excepted. The witness then answered that he had made such a statement. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charges: "(1) The court charges the jury that the writing introduced in evidence is no judgment. (2) The court charges the jury that the writing introduced in evidence from the commissioners' court docket is not a judgment of said commissioners' court. (3) The discontinuance by the commissioners' court of a road does not in itself authorize any person to build a fence across the road so discontin ued. (4) If the jury believe from the evidence that the defendant built the fence across the old road for the purpose of harassing or annoying the plaintiff, then the jury are authorized to find punitive damages." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges requested by him: The first, third, fourth, and sixth charges were the general charges in favor of the defendant upon the different counts of the complaint. "(5) If the jury believe from the evidence in this case that the defendant has never obstructed the road on which plaintiff's homestead is located, then they must find for the defendant." There were verdict and judgment for the plaintiff, assessing his damages at $70.

John H. Miller and Joseph R. Tate, for appellant. John T. Shugart and Bowman, Harsh & Beddow, for appellee.

SHARPE, J. This suit is for the recovery of damages for an alleged wrongful obstruction of a public road. It is personal in its nature, and therefore of the class which, under section 4205 of the Code, may be brought in the county of the defendant's residence, as well as in that where the act complained of was done. The road's location did not determine the court's jurisdiction of the case, and was only necessary to be alleged in the complaint in such way as to notify the defend

ant of the cause of action. The complaint meets that requirement, both in respect of the character of the wrong and of the place of its commission. The inconvenience alleged to have resulted to plaintiff from the obstruction in hindering ingress to and egress from his abutting homestead was a species of injury which bore peculiarly on him, and was a sufficient predicate for an action for his individual reparation, as distinguished from a suit in behalf of the public. The complaint was neither subject to the demurrer, nor to the motion to strike out averments of damage. The motion included the alleged inconvenience to travel, which was certainly proximate injury, and was too broad to raise the question of whether the alleged loss of profit to business was remote.

Plaintiff's testimony relating to inconvenience caused to himself and family in visiting the neighboring post office, church, and school was within the complaint's averment of damages, and was properly admitted.

The testimony elicited from Young against defendant's objection, even if not within the permissible scope of cross-examination, was apparently not injurious to defendant; and for that reason, if for no other, its admission is not cause for reversing the judgment.

Without dispute it was proven that for more than 20 years before it was closed by defendant's fence the road in question had been a public road. To show it had been discontinued as such, defendant relied on an entry purporting to order such discontinuance appearing on a book labeled "Commissioners' Docket, 1898, Jefferson County." Other than by the book itself, its character was shown only by the testimony of a witness who had been a member of the commissioners' court. He testified that that court kept a record of its proceedings. In the language of the transcript: "The witness further testified that he docketed the application above shown [to discontinue the road], but did not write anything else pertaining thereto, and does not recognize the handwriting. This docket is not the record kept by the probate or court of county commissioners, but is the docket kept by the commissioners themselves. At that time the probate judge kept minutes of court of county comm'rs." We think this evidence fails to establish the entry referred to as a judgment. The probate judge is ex officio the principal judge of the commissioners' court, and is the officer designated by the statute to record its proceedings. Code, § 959. The presumption is that he performed that duty, and the evidence shows this docket was not used by him for making such records. To become efficacious, judgments of courts of record must be formally entered of record in the place adopted pursuant to law and the usage of the court for that purpose. Thereafter they can be proved only by evidence of the contents of that record. Dockets used for memoranda, wherefrom the record is made up, do not evidence the judgment. 1 Greenl.

Ev. §§ 508-513; Freem. Judgm. § 409. The evidence leads to the conclusion that such was the character of the book containing the entry mentioned, and that the court did not err in charging the jury that the entry was not a judgment, or in refusing to charge the jury affirmatively in favor of the defendant as to either count of the complaint.

A charge which asserts a correct proposition, but which is abstract as applied to the evidence, should be refused, but in general neither the giving nor refusal of such a charge will warrant a reversal of a judgment. Of this character are charges 3 and 4 given at plaintiff's request, and also No. 5 refused to defendant.

No reversible error has been assigned. The judgment will be affirmed.

LUNSFORD v. HARRISON. (Supreme Court of Alabama. Nov. 27, 1901.) MARRIED WOMAN-LIABILITY ON MORTGAGE -SURETYSHIP.

Where a mortgage upon the separate property of a married woman, which shows upon its face that it was made to secure a debt due to the mortgagee by a married woman as principal, and not as surety for her husband, is sought to be avoided and annulled by the wife, although she admits the execution of the mortgage, upon the ground that she executed it and the note which it was given to secure as sure ty for her husband, the burden of proving that the debt secured by the mortgage was solely the debt of her husband, and that she was his surety in the execution of the instrument, is upon the married woman.

Appeal from chancery court, Jefferson county; John C. Carmichael, Chancellor.

Action by Susan Lunsford against Charles C. Harrison. Judgment for defendant, and plaintiff appeals. Affirmed.

Sam' Will John, for appellant. & Weakley, for appellee.

Cabaniss

DOWDELL, J. Susan Lunsford and her husband each owned in their respective rights vacant lots on Twenty-First street, between Second and Third avenues, in the city of Birmingham, Ala. These lots were contiguous and adjacent to each other. On these lots her said husband, George Lunsford, built a large brick hotel, known as the "Lunsford Hotel." On this property the appellant Susan Lunsford and her husband gave to appellee a mortgage to secure the payment of the loan of $25,000 made by appellee. The present bill was filed by Susan Lunsford on July 28, 1895, seeking to have said mortgage executed by her and her husband on their property canceled in so far as it covers her portion of the said property, upon the ground, as alleged in her bill, that she executed the mortgage merely as a surety for her husband, George Lunsford. The cause was submitted upon the pleadings and proof for final decree, and upon the chancellor's finding upon the facts he dismissed complainant's bill, and

from this decree the present appeal is prosecuted.

The question here presented is purely one of fact. The law of the case is simple and without trouble. If the complainant executed the mortgage merely as surety for her husband in obtaining the loan, then, under the statute which provides that the wife shall not become surety for her husband, the mortgage as to her would be null and void. The defendant denies the allegations of the bill upon which complainant rests her equity and claim for relief, and upon this issue, so made, the burden of proof is upon the complainant. Gafford v. Speaker, 125 Ala. 498, 27 South. 1003; Hamil v. Mortgage Co. (Ala.) 28 South. 558.

The complainant relied upon her own testimony, given in two separate depositions, and the testimony of her son-in-law, J. R. Copeland, and her son, W. G. Lunsford. The last two named witnesses did not claim to have any personal knowledge as to how and between whom the loan was made, and their testimony simply tended to show that Mrs. Lunsford did not need the money, and that Mr. Lunsford did need it, and that he used it after it was borrowed. If the loan in fact was a joint loan to Mrs. Lunsford and her husband, it is wholly immaterial and unimportant whether Mrs. Lunsford needed the money, or whether Mr. Lunsford used it after it was borrowed. Mortgage Co. v. Thornton, 108 Ala. 25S, 19 South. 529, 54 Am. St. Rep. 148; Gafford v. Speaker, supra; Hamil v. Mortgage Co., supra. And in this connection it may be further stated that it is unImportant whether the application for the loan was made orally or in writing, or whether Mr. and Mrs. Lunsford were both present at the time the application was made for the loan, if the application as made was for a joint loan, and a joint loan in fact was made.

The defendant, in support of his answer, gave his own deposition, and had examined as witnesses in his behalf B. Steiner and J. W. Bush, who were instrumental in securing the loan for the borrowers; and he also offered in evidence the bonds and coupons evidencing the loan, the mortgage securing the same. the abstract of title, the opinion of J. W. Bush, an attorney at law, on the title, a receipt for the money borrowed, signed by the complainant and her husband, and certain letters which she had written. The evidence, without conflict, shows that the defendant. Harrison, at the time the loan was made by him, in 1892, resided, and still resides, in the city of Philadelphia, Pa., and he has never been to Birmingham. The complainant, Mrs. Lunsford, never saw him, and the loan in question was obtained by Steiner Bros., of Birmingham, and by J. M. Gummey & Sons, of Philadelphia, their associates, both of whom were employed and paid by the Lunsfords. B. Steiner testifies, and there is no contradiction, that, about June or July of

1892, Mr. George Lunsford came to the bank, and asked him if he could obtain a loan for himself, Lunsford, and his wife on some property on Twenty-First street, between Second and Third avenues, to be known as the "Lunsford Building," and which is the property here in controversy; that he informed Mr. Lunsford that he did not have any one right there and then who would take such a big loan, but that he would communicate with some of his correspondents. At this time Steiner knew nothing about Mr. Harrison, the respondent, and had never heard of him. Steiner wrote J. M. Gummey, of Philadelphia, in reference to the loan, upon an agreement to divide his commission, to be paid by the Lunsfords, equally with Gummey, which he did. Gummey replied that he would take the loan, and afterwards instructed that the bond and mortgage be made to C. O. Harrison. Steiner turned the papers over to J. W. Bush, the attorney, who was also paid by the borrowers, and he prepared the papers as directed. Mrs. Lunsford and Mr. Lunsford executed the papers, which are produced in evidence. The bond for $25,000, with interest coupon, was signed by both, she signing first. The bond recites that: "We, Susan Lunsford and George Lunsford, of the county of Jefferson, state of Alabama, are indebted to Charles C. Harrison, of the city of Philadelphia, Pa., in the sum of $25,000," etc. And again: "This bond, * * which was given for an actual loan for that amount of money to us at said county on the date hereof, and is secured by a first mortgage of even date herewith, duly executed by Susan and George Lunsford to said Charles C. Harrison, upon certain real estate in said county," etc. The mortgage was also signed first by Susan Lunsford, and recited that it was made and entered into by and between Susan Lunsford and her husband, George Lunsford, of the city of Birmingham, county of Jefferson, state of Alabama, the parties of the first part, and Charles C. Harrison, of the city of Philadelphia and state of Pennsylvania, party of the second part; and further recited that "whereas, the said parties of the first part have this day borrowed of the party of the second part the sum of $25,000," etc. The bond and mortgage thus executed and containing these recitals were left with Steiner Bros., acting for and employed by the Lunsfords, to be sent forward for the purpose of obtaining the money from this defendant upon them. At or about the same time Mr. Bush sent forward the abstract, with his opinion upon the title, wherein he said: "I have also carefully prepared and had executed the bond, coupons, and mortgage, and the same are in strict conformity with the laws of Alabama, and a valid and binding obligation on Susan and George Lunsford." The principal and interest notes and the said opinion of J. W. Bush were delivered to Mr. Harrison by Mr. Gummey in Philadelphia, and thereupon, and upon the

faith of them, he parted with the said sum of $25,000, handing the same to Mr. Gummey to be remitted to Birmingham. At that time Mr. Harrison did not know either George or Susan Lunsford, and he accepted the loan upon the expert opinion of Mr. Gummey as to the value of the property, he having previously visited Birmingham. Thereupon Mr. Gummey sent the money to the New York correspondent of Steiner Bros., and telegraphed them to settle with Mr. and Mrs. Lunsford. Mr. Steiner sent a messenger out to Mr. Lunsford's house, and both of them came in to obtain the money, and then and there settlement was made with both of them, as appears over their own signatures to the following letter there signed: "Birmingham, Ala., August 10, 1892. Messrs. J. M. Gummey & Son, Philadelphia, Pa.-Gentlemen: We are thankful to inform you that we have received the $25,000, for which we gave a mortgage dated August 1st, 1892, to Charles C. Harrison, on some property in this town on 21st St., lots 209-211. Yours very truly, [Signed] Susan Lunsford. George Lunsford." The signing of this letter is admitted by the complainant, although she had previously sworn that she did not remember being present when the money was paid over, nor remember signing any receipt. Subsequently Mr. Lunsford died, in the summer of 1893, and Mrs. Lunsford, after the death of her husband, continued to pay interest on this loan, and, when not paid punctually by her, apologizing for not paying earlier, and promising to pay in the future; never at any time setting up the claim she now asserts until the defendant, failing to collect his interest, began foreclosure proceedings. Furthermore, in order to raise more money and pay off interest on the $25,000, Mrs. Lunsford, in April, 1894, borrowed $4,000 from this defendant, securing the same by mortgage on other property of hers, and in that mortgage, which is also in evidence here, she recites expressly that she had, jointly with her husband, borrowed the $25,000 from Mr. Harrison, and she admits that this mortgage was read over to her before she executed the same.

It cannot be doubted from the evidence that the application as made to the respondent, Harrison, for the loan was for a joint loan to Mr. and Mrs. Lunsford, and that this application was made to him through their agents, and not his. In our opinion, the overwhelming weight of the evidence tends to show that the loan was jointly obtained by Mrs. Lunsford and her husband; and the burden of proof under the issue being upon her to show that the loan was not joint, and that she was merely the surety of her husband, her unsupported testimony, especially when weighed in the light of her former admissions to the contrary, is not enough to overcome the defendant's evidence in the case, and falls short of discharging the burden of proof which rested upon her. After a most careful review of all the evidence, we

are unable to see any reason for disturbing the finding of the chancellor upon the facts. The decree of the chancellor will be affirmed.

ALABAMA STATE FAIR & AGRICULTUR-
AL ASS'N V. ALABAMA GAS FIX-
TURE & PLUMBING CO.
(Supreme Court of Alabama. Nov. 26, 1901.)
MECHANIC'S LIEN-LEASEHOLD ESTATE SUF-
FICIENCY OF STATEMENT.

1. It is no objection to the establishment and enforcement of a mechanic's lien upon buildings and improvements on leased premises under a contract with the lessee, and upon the unexpired terms of the lease, that there was a provision in the lease which prohibited the removal of improvements from the premises unless the rent be paid.

2. In an action to enforce a mechanic's lien upon property, a plea which simply avers that "plaintiff has no lien upon the property described in the complaint" is subject to demurrer for its uncertainty, and as being purely the statement of a legal conclusion.

3. In an action to enforce a mechanic's lien, a plea is insufficient and subject to demurrer which avers simply that "the account filed to enforce by plaintiff a mechanic's lien does not purport to be a just and true account of the demand after all just credits should have been given," since such plea should have set out the account referred to therein.

4. In such an action, a plea which avers "that the acre of land on which the plaintiff claims his lien is not described in the complaint and in the account filed" is insufficient, and subject to demurrer, in that it tenders an issue as to what the complaint contains, rather than being an answer thereto.

5. A statement filed by a mechanic in the office of the judge of probate, for the purpose of establishing a lien for work done and materials furnished, which shows the unpaid balance due the plaintiff from the defendant for certain work done and materials used in erecting improvements on lands which are described as being a certain park "in or near the western limits of the city of Birmingham, Jefferson county, Alabama," and which is verified by the affidavit of a person describing himself as being a member of the plaintiff corporation, conforms substantially to the requirements of the statute, and is admissible in evidence. A statement of the unpaid balance due the plaintiff is sufficient, without declaring in terms that all just credits have been given.

6. Where work is performed and material furnished in the erection of certain buildings under two separate contracts, and the rights growing out of said contracts are identical in character and as to parties, a lien for the amount due under said contracts may be enforced in one action.

Appeal from city court of Birmingham; Chas. A. Senn, Judge.

Action by the Alabama Gas Fixture & Plumbing Company against the Alabama State Fair & Agricultural Association. Judgment for plaintiff. Defendant appeals. Affirmed.

The first four counts of the complaint were the common counts, while in the fifth count of the complaint the plaintiff claimed of the defendant the sum of $486.91, “due it on a contract for work and labor done, and for materials and fixtures furnished, and for im

« PreviousContinue »