Louisville & Nashville Railroad v. Hall

TYSON, J.

This was an action of trespass quare clausum fregit. The complaint contains three counts. The first relies for a recovery upon plaintiff’s possession of the locus in quo; the second, upon title, and the third, upon title and' possession.

The gist of this action is the injury done to the possession ; and of consequence, to support it, the plaintiff must show that, as to the defendants, he had at the time of the alleged injury, rightful possession, actual or constructive. Of course if he has title to the property alleged to have been trespassed upon, he lias constructive possession of it, unless he has parted with the pos: session conferring on another the exclusive right of enjoyment against whom he has not the right of immediate possession. — Davis v. Young, 20 Ala. 151; Boswell & Wooley v. Carlisle, Jones & Co., 70 Ala. 244; Dunlap v. Steele, 80 Ala. 424; Fields v. Williams, 91 Ala. 502. As against a stranger, actual possession will support the action, without regard to whether plaintiff had title at the time of the alleged trespass. — Duncan v. Petts, 5 Stew. & Port. 82; Langford v. Green, 62 Ala. 314. But as against one having title to the property alleged to have been trespassed upon and having been wrongfully denied possession, in 26 Am. & Eng.Ency. Law (1st ed.), 600, it is said: “One having" title to *166 property and wrongfully denied possession, can enter without being guilty of trespass; so a tenant, mortgagor or other person, without title, may have a present right of possession which will justify his entry or enable Mm, if in possession, to maintain trespass for the wrongful entry of another.” See in support of this proposition note 1 on page 600 and note 1 on page 601 of the same volume where the cases are collated. This principle was recognized in Herndon v. Bartlett, 4 Port. 481, where the court held that the plea of Uberwn tenementum was an answer to a complaint in trespass quare clausum fregit alleging entry with force and arms and was proper matter for special plea. See also 26 Am. & Eng. Ency. Law (1st ed.), 632-634. In view of the conclusion to strike the bill of exceptions, the only matter before us for consideration is whether the joint plea of all the defendants designated as “A” was subject to the demurrer interposed to it. That plea refers to and makes a part of it, plea “2” of the Mobile and Montgomery Railway Company, one of the defendants in the cause. In the absence of all objection to this mode of pleading, we must hold that the effect of this reference, etc., to plea 2' was to incorporate the allegations of fact in that plea into the plea under consideration and to make those allegations as much a part of this plea as if they had beeu actually written in the body of it. With the plea thus framed, it contains a denial of plaintiff’s1 possession and title to the locus in quo and an allegation of liberum tenementtm in the Mobile and Montgomery Railway Company. It is clear that it was not subject to the demurrer interposed to it, whatever may be its defects in other respects. For the error committed in sustaining the demurrer, the judgment must be reversed.

The bill of exceptions must be stricken on the authority of Gassenheimer Paper Co. v. Marietta Paper Co., 127 Ala. 183, on account of being in violation of Rule 33 of circuit and inferior court practice (Code, p. 1201). The frame of the bill of exceptions in this case is identical with the one in the Gassenheimer Paper Co. case. Here, as there, it “contains a statement of everything that was done on the trial, and sets forth *167 every word uttered by everybody — witnesses, attorneys, judge, etc., — while it ivas in progress. * * * No effort is made to present a statement of the testimony or its tendencies, as the rule requires, but it is given verbatim as it comes from the mouths of witnesses. Not only are the objections to the testimony stated, but the arguments of counsel upon the objections are set- forth at length and in full; and not only are shown the rulings of the court, but every remarle of the presiding judge is set forth with care and particularity.” It also sets forth rulings against the plaintiff and other defendants in whose favor there ivas a verdict and judgment, who of course do not appeal, and the grounds upon which those rulings were made and the exceptions thereto, along with the suggestions, remarks and arguments of counsel thereon.

But it is insisted that all this was necessary because the affirmative charge was given for the plaintiff and refused to these appellants. This contention is based upon a mistaken interpretation of the provision of the rule to the effect that bills of exceptions may contain a statement of testimony in extenso, when the affirmative charge has been asked in good faith. — Woodward Iron Co. v. Herndon, 130 Ala. 364. It may be, as was said in the case just cited, that “occasionally it may be necessary, in order to convey some shade of meaning which cannot be stated aptly, or where there is doubt as to the meaning, to set forth the question and the answer; but it is not conceived that this necessity can often arise.” Here, it may be well to call attention to the difference between the bill of exceptions in the Woodward Iron Co. case, which this court did not strike, but imposed the cost of it on the appellant, and the one under consideration. In that case, the bill only contained the questions to and answers of the witnesses— no speeches, remarks or suggestions of attorneys, remarks of judge, objections and exceptions of successful party, etc. It must be understood, however, that the considerations which were allowed to obtain in the Woodward Iron Co. case to the end of saving the bill of exceptions from being 'stricken, will, not be indulged in another where the bill is framed as that one was and *168 prepared after tlie announcement of the opinion in that case.

Again it is contended that appellants out of deference to the wishes of the presiding judge prepared the hill of exceptions as it appears in this record. The facts upon which this contention is based, are shown by an affidavit of the judge. But his conception of what the bill should contain, doubtless grew out of a misconstruction of the rule and his requirement that the bill he constructed in violation of it is no excuse. Had the bill been properly framed and had he refused to sign it on presentation, it could have been established in this court.

The writer of this opinion, however, thinks that the striking of the bill of exceptions is too severe a penalty to impose, in view of the nature of the case rendering it exceedingly difficult to state in an orderly manner all the testimony or its tendencies; and in view of the fact that the affirmative charge was given for the plaintiff and refused to these appellants. Furthermore, he is induced to this conclusion by the fact that this cause was submitted before the announcement of the opinion in the Gassenheimer Paper Co. case; and while he concedes that this bill was a more flagrant infraction of the rule than was the one. in the Woodward Iron Co. case, still in view of the considerations which were allowed to obtain in that case, he thinks under the circumstances, they should be allowed to prevail here. A sufficient punishment, in his opinion, would be an imposition of costs.

Reversed and remanded. Costs of bill of exceptions to be adjudged against appellants.