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All Reporters → ala → Volume 265

Opinions in ala Volume 265

91 So.2d 500 (1956) M. HOCHMAN v. STATE of Alabama. 1 Div. 667. Supreme Court of Alabama. June 30, 1956. John Patterson, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for petitioner. Chas. Hoffman, Mobile, opposed. SIMPSON, Justice. Writ of certiorari to the Court of Appeals was granted. Revised Rule 39, Code 1940, Tit. 7, Appendix. The State's petition for certiorari brings before us for revie...
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Appellee instituted this action in the Circuit Court of Jefferson County under the provisions of the Employer’s Liability Act, Title 26, § 326, Code 1940, seeking to recover damages for personal injuries. The complaint, in substance, charged that appellant furnished a defective truck to his employee, the appellee, and that appellee was injured thereby. To this complaint, as amended, appellant f...
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On this appeal the important question is whether the bill in equity shows a right of complainants on the rescission of a transaction to recover expenses which they incurred in preparing to utilize the property purchased. Complainants, to whom we will refer as appellees, and respondent to whom we will refer as appellant, made an agreement, exhibit A to the bill of complaint, which is as follows: “J...
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This appeal is by the respondents, all of the members of the Board of Commissioners of the Town of Muscle Shoals, from a judgment of the Circuit Court of Colbert County, awarding peremptory writ of mandamus ordering, directing and commanding them as such commissioners “to forthwith call an election for and in the Town of Muscle Shoals, a municipal corporation in Alabama, to decide the question whe...
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This is an original petition addressed to this Court by Charles M. Parker for a writ of mandamus to the Judge of the Circuit Court of Covington County, commanding him to vacate and set aside an order vacating a judgment by default, which he had entered in a case in the Circuit Court, which will be hereinafter described and also commanding him to vacate and set aside an order which he made transfer...
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This is an appeal from a decree of the Circuit Court, In Equity, overruling the demurrer of the appellant to the bill of complaint filed by the appellee for a divorce on the ground of cruelty. § 22, Tit. 34, Code of 1940. The pertinent part of the controlling statute reads: “In favor of either party to the marriage when the other has committed actual violence on his or her person, attended with da...
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This appeal is from a final decree rendered by the Circuit Court in Equity of Jefferson County. The case is submitted on appellant’s motion to strike the transcript and on the merits. The motion to strike is grounded on the failure to timely file the transcript as required by Supreme Court Rule 37, as amended. The motion is well taken and of consequence the case cannot be considered on its merits....
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This case is before us on petition for writ of mandamus to be directed to the Honorable Will O. Walton, as Associate Judge of the Fifth Judicial Circuit of Alabama, requiring him, as such Judge, to vacate and set aside a judgment and order made and entered by him in this cause on the 25th day of January, 1955, by which said cause was restored to the docket. It appears that there are three suits to...
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The appellant, Pauline J. Ruck, filed a petition for a writ of habeas corpus in the circuit court of Montgomery County seeking custody of her two children, Leslie and Evelyn, who were 8 and 6 years of age, respectively, when the proceeding was instituted. The appellee, Joseph W. Ruck, is appellant’s divorced husband and the father of said children. In June, 1951, the Superior Court of Cook Coun...
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The appellant, Scotch Lumber Company, Inc., filed a bill for declaratory judgment seeking a judicial interpretation of Section 585 of Title 51, Alabama Code of 1940. The statute, as amended in 1945, provides: “Each person, firm or corporation engaged in operating a saw mill, heading mill or stave mill shall pay a privilege tax according to capacity as follows : Those having a capacity of five thou...
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This is an appeal by petitioner (appellant) from a judgment denying him a mandamus to the clerk of the city of Prichard, Mobile County, for the issuance of a city license to sell package beer to be drunk off his premises. The answer of the clerk to the petition invoked an ordinance of the city, which provides for a license charge of $250 for “Beer Parlors, Beer Package Stores, or other pla...
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The appellee was assessed additional punchboard tax by the Department of Revenue and appealed said assessment to the Circuit Court, sitting in equity, for a trial de novo under the provisions of § 140, Tit. 51, Code of 1940. This is an appeal by the State from the ruling of the Circuit Court in equity overrul ing the State’s demurrer to the taxpayer’s bill as amended. An assessment duly made by th...
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The complainant, Katie Bibb, filed her original bill of complaint against John Diffley d/b/a American Veneering Company, Guy Renfro and J. T. DeLoach. The bill sought to have a note and mortgage set aside on the ground that they were obtained by fraud. Demurrers were sustained to the original bill, and the complainant then filed an amended bill. Respondents Renfro and Diffley filed separate demurr...
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Johanna Pausic, appellant, claiming to be the widow of Louis Pausic, who died on December 23, 1940, filed in the probate court of Jefferson County on November 4, 1955, a petition seeking the appointment of appraisers to set apart to her, out of property owned by Louis Pausic at the time of his death, a widow’s exemption both as to personal property and a homestead. Three appraisers were appointed,...
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The appeal in this case must be dismissed. There is no organization of the court appearing in the record as required by Rule 24 of the Supreme Court (old Rule 26), Code 1940, Tit. 7 Appendix. This matter is jurisdictional and the Court must take notice of it ex mero motu. West v. Camp, 264 Ala. 644, 89 So.2d 170; Reynolds v. Henson, 264 Ala. 435, 87 So.2d 856; McPherson v. Stallworth, 262 Ala. 367...
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The questions sought to be presented on this appeal are not raised by assignments of error as required by Supreme Court Rule No. 1, Code of 1940, Tit. 7 Appendix. The result is that the judgment of the lower court must be affirmed. Tidwell v. Town of Town Creek, 264 Ala. 330, 87 So.2d 646; Purvis v. Ennis, 258 Ala. 174, 61 So.2d 451; Wetzel v. Hobbs, 249 Ala. 434, 31 So.2d 639. Affirmed. GOODWYN, ...
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On December 27, 1952, Virginia V. Wilson (appellee) went into the store of the defendant, Hill Grocery Company, a corporation (appellant), located on Fourth Avenue at Eighteenth Street in the City of Bessemer for the purpose of making a purchase. It is claimed that as she was walking down one of the aisles in the store to the counter where the articles she desired to purchase were kept, she slippe...
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The State Department of Revenue, sometimes hereafter referred to as the De*53partment, found that for the five-year period beginning October 1, 1943, and ending September 30, 1948, the Pan-American Petroleum Corporation failed to pay to the State of Alabama the sum of $13,-858.55 due under the terms and provisions of § 634, Title 51, Code 1940. Based on such finding the Department entered a prelim...
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This is an appeal by complainant (the wife) in a divorce suit by her against her husband (appellee) from a final decree granting a divorce to the husband on his cross bill alleging voluntary abandonment from bed and board for one year next preceding the filing of the bill of complaint, but awarding alimony to appellant. Appellant complains that the decree granting a divorce to appellee on the g...
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This is an original application to this Court for leave to apply to the Circuit Court of Houston County for a writ of error coram nobis to review the action of that court in adjudging the petitioner guilty of a criminal offense. The nature of the offense is not alleged in the petition. Our records show that this Court did not take jurisdiction of this case. Smith v. State, 264 Ala. 264, 86 So.2d 8...
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This is a proceeding in equity instituted by the State on relation of the Solicitor of the Eighth Judicial Circuit under the authority of § 247 et seq., Title 29, Code 1940, as amended, to condemn one Ford automobile alleged to have been used in the illegal transportation of prohibited liquor. From a decree of condemnation, Ellie Reno, owner and operator of the automobile and defendant in the caus...
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The several matters presently before us, docketed here as 6 Div. 787, are parts of the continuing litigation which we have heretofore designated the “Western Grain Company Cases.” Statements of the facts leading up to the litigation appear in Wilkinson v. McCall, 247 Ala. 225, 23 So.2d 577; Mudd v. Lanier, 247 Ala. 363, 24 So.2d 550; and the Western Grain Company Cases, 264 Ala. 145, 85 So.2d 395....
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This is a suit by appellant against appellees for a strip of land of “5 to 7 acres” in area. The complaint is not specific that it is situated in the SE¡4 of SEJ4, Section 19, Township 20, Range 4 West, nor that it is in the adjoining forty on the east which is the SWj4 of SWJ4 of Section 20. But it describes it as “Begin at the iron corner placed by W. B. Bennett, Bessemer, Alabama, a registered ...
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89 So.2d 549 (1956) STATE of Alabama v. PLANTATION PIPE LINE COMPANY. 3 Div. 735. Supreme Court of Alabama. August 2, 1956. Rehearing Denied September 13, 1956. Writ of Certiorari Denied December 10, 1956. *550 John Patterson, Atty. Gen., and Willard W. Livingston and Wm. H. Burton, Asst. Attys. Gen., for appellant. Cabaniss & Johnston, Jos. F. Johnston and E. T. Brown, Jr., Birmingham, for a...
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Herman Lawhorn has filed here his petition for writ of certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Lawhorn v. State. Our review is limited to the holdings of the Court of Appeals which are argued in brief filed with the petition for the writ of certiorari. Atlantic Coast Line R. Co. v. Vise, 262 Ala. 329, 78 So.2d 661. The brief fi...
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This is an appeal by defendants from a final decree in equity in which the court made declaration that the option contained in an agreement, therein referred to, was valid and enforceable; and then proceeded to decree a specific performance of it. The bill of complaint was filed by appellee, as the assignee of the option referred to, against the grantor of the option, and sought declaration as to ...
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This case involves the claim of alleged remaindermen not in possession of real estate and with no right to immediate possession to maintain a bill in equity to remove a cloud on their remainder interest pending termination of the life estate. Hoyt Wilder and others filed their bill of complaint against Velma Ayres Scott and others to remove alleged clouds upon the title of certain lands aggregatin...
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Ex parte.Western Grain Company, Incorporated, which is docketed in this court ■as 6 Div. 773, is a petition to the Supreme .Court-of Alabama for a writ of mandamus, supersedeas or other remedial writ.. ,A rule nisi was issued to Judge Eugene Hawkins on July 12, 1954, to set aside, vacate and *112annul an order made by him on July 9, 1954, or to show cause why he should not set aside, vacate and an...
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On the issue of negligent operation of the train the jury in the trial in the circuit court found for the defendant. The Court *114-'of Appeals reversed this finding, holding that the plaintiff was entitled to the affirmative charge. We interpret the opinion of the Court of Appeals as holding that the 'evidence was not sufficient to overcome the presumption arising under § 173, Title 48, • Code of...
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On the night of July 3, 1956, deputy sheriffs of Tallapoosa County, a dry county, seized a truck and 700 cases of tax-paid beer belonging to the petitioner as the truck was- transporting the beer over the roads of that county. *116The county solicitor of Tallapoosa County on July 7, 1956, filed condemnation proceedings against the truck in the circuit court of Tallapoosa County, in equity, but no ...
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Petition dismissed. All the Justices concur....
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On Rehearing The appellee urges that it is not reversible error to admit expert opinion evidence on a matter of common knowledge, citing Norwood Clinic, Inc., v. Spann, 240 Ala. 427, 199 So. 840. Further research confirms the opinion on original deliverance that it is reversible error to admit expert opinion evidence on a matter of common knowledge, because such evidence invades the province of t...
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This is an appeal by the Merchants National Bank of Mobile, as trustee, from a final decree rendered by the Circuit Court of Mobile County, in equity, in a declaratory judgment proceeding brought by said Bank, as trustee, against Loyd Cowley and Lucille Sutton, as executors of the will of *128 Norma S. Cowley, deceased, Loyd Cowley, Janeillen Cowley and Rosemary Cowley (the younger...
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The appellant, Joe Sidney, alias, was tried in the Circuit Court of Sumter County for the offense of murder in the first degree. Upon a plea of not guilty, trial was had and the jury returned a verdict of guilty and fixed punishment at death by electrocution. From that sentence this appeal has proceeded under the automatic appeal statute. The appellant filed a motion for new trial in the court bel...
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The appeal in this case was taken on the 28th day of December, 1954, by the appellant, after a decree padlocking his place of business was entered by the Circuit Court of Jefferson County, Alabama,, Bessemer Division, sitting in equity. According to the record, the transcript was filed with the clerk of the circuit court on the 7th day of March, 1955, and was filed with the clerk of this court on ...
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Brookley Manor, Inc., hereafter referred to as the Company, is an Alabama corporation organized primarily to provide housing for rent or sale. On December 1, 1950, the Company entered into a contract with the Secretary of the Air Force to lease approximately thirty-four acres of land situate in Mobile County to be used for the purpose of erecting, maintaining, and operating thereon a housing proje...
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Susie Lee Williams, widow of William E. Williams, instituted these proceedings to recover benefits alleged to be due to herself and her minor children under the Workmen’s Compensation Laws of Alabama. § 253 et seq., Title 26, Code of 1940. It is claimed by her that these bene-' fits grow out of the death of her husband, William E. Williams, who died on February 13, 1952, as the result of an accide...
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This is a boundary line dispute in equity. Appellee was the complainant and appellant the respondent in the court below. Complainant’s land is immediately north of respondent’s. There is also a tract north of complainant’s land. The three tracts were in one body and owned by Z. G. Wells at the time of his death which occurred prior to February 15, 1923. On that day his widow and heirs undertook to...
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We have held that an appeal must be dismissed where the record fails to show the organization of the court as required by Rule 26 of the Supreme Court Rules, Code 1940, Tit. 7, Appendix. This rule is now Rule 24 of Revised Rules of the Supreme Court, effective June 1, 1955. Powell v. Powell, Ala., 89 So.2d 530;1 West v. Camp, 264 Ala. 644, 89 So.2d 170; Reynolds v. Henson, 264 Ala. 435, 87 So.2d 8...
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90 So.2d 238 (1956) C. Bryan REDMOND, d/b/a Redmond Motors, v. Ruby SELF. 6 Div. 724. Supreme Court of Alabama. November 1, 1956. *240 Bowers, Dixon, Dunn & McDowell and Evans Dunn, Birmingham, for appellant. Gibson, Hewitt & Gibson, Birmingham, for appellee. LAWSON, Justice. This appeal is from a judgment rendered in an action against appellant, C. Bryan Redmond, doing business as Redmon...
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This appeal was taken from a decree of , the Circuit Court of Jefferson County, Alabama, sitting in equity, overruling motions of the respondent (appellant) to vacate and to dissolve a preliminary injunction prohibiting the sale and offering for sale of any beer or other alcoholic beverages at his place of business. The complainants, W. D. Kendrick, Charles E. Harrison and E. H. Gilmore, acting in...
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This is an appeal by Marshall Memory Gardens, Inc, a corporation, from a decree overruling the demurrer to a bill in equity filed by Francis A. Long and Charles G. Long, partners doing business as Long Brothers (appellee), against Marshall Memory Gardens, Inc, a corporation (appellant). The purpose of the bill, filed on March 28, 1956, is to establish a mechanic’s or materialman’s lien on certain ...
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In this cause W. W. Self recovered a judgment in the amount of $1,500 against C. Bryan Redmond, doing business as Redmond Motors, for personal injuries and damage to his automobile suffered in the collision which precipitated the litigation in Redmond v. Self, 6 Div. 724, ante, p. 155, 90 So.2d 238. In appealing from that judgment Redmond complains, as he did in 6 Div. 724, that the trial court er...
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The appeal in this case is from a final decree in favor of one partner against his copartner on dissolution and settlement of partnership affairs. The litigation between these parties has been of long duration and has come before this court, in one *170form or another on three former appeals, to which we will later refer in more detail. The partnership was formed in 1946 between S. S. Hunter (appe...
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This is an appeal by complainant from ■a final decree sustaining a demurrer to a bill in equity and dismissing the bill upon the failure of complainant to amend after the demurrer was sustained. The bill had been redrafted completely, to which the demurrer was sustained when the final decree was rendered. The bill as redrafted and finally amended (as was also the original bill) was against the Uni...
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90 So. 2d 385 (1956) STATE of Alabama v. NATCO CORPORATION. 6 Div. 996. Supreme Court of Alabama. November 1, 1956. John Patterson, Atty. Gen., Willard W. Livingston and H. Grady Tiller, Asst. Attys. Gen., for appellant. Wm. S. Pritchard, Winston B. McCall, Victor H. Smith and Pritchard, McCall & Jones, Birmingham, for appellee. STAKELY, Justice. There appear on the docket of this Court two c...
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Appellants filed a bill of complaint in equity in the Circuit Court of Montgomery County, Alabama, under the provisions of Article 12, § 156 et seq., Title 7, Code of Alabama 1940; seeking a declaratory judgment against appellee, Alabama Milk Control Board. Appellee moved to' strike the bill of complaint on the grounds that Section 226, Title 22, Code 1940, provides an exclusive method to challen...
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This is an appeal from a judgment of the circuit court in a personal injury action. The single count submitted to the jury charged simple negligence. The defendant filed pleas of the general issue and contributory negligence. A timely motion for new trial was overruled. Several grounds of the motion for new trial and the appellant’s assignments of error pertain to the admission of evidence on t...
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On April 12, 1955, the State of Alabama made final two assessments of gasoline tax against J. O. Gaines, d/b/a Etowah Oil Company, appellee. The first of these assessments covered an alleged tax deficiency due for the period September 1, 1952, through August 31, 1953, for $164.82, and the second assessment covered the period from September 1,1953, through August 31, 1954, in the amount of $151.66....
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90 So.2d 246 (1956) Oscar LIMBAUGH v. William W. COMER. 6 Div. 639. Supreme Court of Alabama. September 6, 1956. Rehearing Denied November 15, 1956. *247 Kingman C. Shelburne, Birmingham, for appellant. Rogers, Howard & Redden, Birmingham, for appellee. SPANN, Justice. Appellant, Oscar Limbaugh, filed his bill in equity in the Circuit Court of Jefferson County, Alabama, to settle a dispute as to ...
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90 So.2d 813 (1956) James Edwin SCOTT v. Emily V. SCOTT. 5 Div. 603. Supreme Court of Alabama. November 15, 1956. Harry D. Raymon, Tuskegee, for appellant. Russell & Russell, Tuskegee, for appellee. PER CURIAM. This is an appeal from a final decree in equity which denied the relief sought in a bill whose object was to modify a former decree of divorce to the extent that it granted a monthly allow...
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90 So.2d 816 (1956) Henry CHISOM v. WOODWARD IRON COMPANY. 6 Div. 825. Supreme Court of Alabama. November 15, 1956. *817 Lipscomb, Brobston, Jones & Brobston and W. E. Brobston, Bessemer, for appellant. B. J. Dryer, Woodward, for appellee. LIVINGSTON, Chief Justice. Henry Chisom, appellant, and ten others brought suits against Woodward Iron Company, appellee. These suits were tried together. The ...
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This is a consolidation of three appeals taken from decrees of the trial court, sitting in equity, sustaining demurrers to a bill of review. The bill of review sought to attack as void a final decree on the merits rendered by the Circuit Court of Montgomery County, in Equity, in a case styled Thomason v. Hagan. That original suit, contrary to the contention of the appellant, not only was a derivat...
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Clayton C. Strane and Ada D. Strane,, appellees here, filed a bill of complaint inthe circuit court of Montgomery County,, in equity, to enjoin the respondents, appellants here, from blocking access to an alleged alley adjoining the complainants” property on the south and the respondents’' property on the north. This appeal is by respondents from the final decree granting the relief prayed for....
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This is an appeal from a decree overruling demurrers to a bill in equity. The bill, in substance, alleges that complainant, Hubert H. Busby, Jr., and respondent, Willie Aileen Busby, were married in February, 1944, and were remarried in June, 1952, and lived together until September 8, 1955; that on or about April, 1954, the respondent threatened to kill complainant with a butcher knife; that anot...
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This is an appeal by respondent from a final decree in equity, in which the court vacated a deed dated April 8, 1936, which deed was signed by R. E. Lee and his wife (complainant) with respondent as grantee. The authority invoked and applied by the court is section 15, Title 20, Code. The bill alleged, and the court found, that a material part of the consideration for the execution of the deed was...
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90 So.2d 825 (1956) May Davis SNEAD v. Herbert DAVIS et ux. 8 Div. 802. Supreme Court of Alabama. November 15, 1956. *826 Smith & Moore, Guntersville, for appellant. No attorney for appellees. LIVINGSTON, Chief Justice. This is an appeal from a judgment of the circuit court denying and dismissing a petition addressed to the judge of the circuit court for a habeas corpus, whereby petitioner so...
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90 So.2d 221 (1956) Eugene Gwin WALKER v. The STATE of Alabama. 6 Div. 998. Supreme Court of Alabama. September 6, 1956. Rehearing Denied November 15, 1956. *222 Harold T. Ackerman, Birmingham, for appellant. John Patterson, Atty. Gen., and J. Noel Baker, Asst. Atty. Gen., for the State. SIMPSON, Justice. This is an appeal from the Circuit Court of the Tenth Judicial Circuit of Alabama. *223 The ...
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This is an appeal by Curtis Smith from a. decree of the probate court of Jefferson County, Alabama, granting letters of administration cum testamento annexo on the estate of Sallie W. Davis, deceased, to Roger F. Rice, appellee. *239Sallie W. Davis departed this life in Jefferson County on December 17, 1953, leaving a last will and testament naming her adopted son, Jerre Lawrence Davis, a minor, a...
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The State of Alabama, by William F. Thetford, Solicitor of the Fifteenth Judicial Circuit of Alabama, filed a complaint in the Circuit Court of Montgomery County, In Equity, against one 1950 Cadillac Sedan, Motor No. 506116301, tag No. 3-34277, property of James Moore, in accordance with the provisions of Title 29, Sections 247, 248 et seq., Code 1940. The prayer of the complaint was for the conde...
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This is a declaratory judgment proceeding, Code 1.940, Tit. 7, § 156 et seq., brought by appellant, a resident' citizen, voter and taxpayer of the City of Gadsden, against the City of Gadsden and the members of the City’s governing body. The appeal here is from a decree sustaining the respondents’ demurrer to the bill of complaint. Ordinarily, where a bill seeking a declaratory judgment shows a bo...
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This is an appeal from a decree of the circuit court of Franklin County, in Equity, overruling a demurrer to the bill of complaint. The appeal must be dismissed because the record fails to show the organization of the court as required by Rule 26 of the Supreme Court Rules, Code 1940, Tit. 7, Appendix (now Rule 24 of Revised Rules of the Supreme Court, 261 Ala. p. XIX et seq.). Such failure is jur...
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This is an appeal from a judgment of the Circuit Court of St. Clair County in favor of appellee — plaintiff below for damages for the alleged trespass of the appellant — defendant and cutting of the timber upon plaintiff’s land. Two assignments of error are presented by the record and they are the only assignments which will be considered. There are other assignments listed in appellant’s brief an...
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90 So.2d 727 (1956) W. I. GRUBB, Jr., et al. v. L. H. TEALE. 6 Div. 618. Supreme Court of Alabama. November 15, 1956. *728 Burr, McKamy, Moore & Tate, Maurice F. Bishop and Mark L. Taliaferro, Birmingham, for appellants. Parsons, Wheeler & Rose, Birmingham, for appellee. GOODWYN, Justice. W. I. Grubb, Jr., an appellant here and a respondent below, is the owner of lot 9 of G. M. Matthews' Addition...
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The Circuit Court of Jeffersoij County, in Equity, upon complaint of the husband, rendered a decree dissolving the bonds of matrimony between Fannie Reynolds and Marion Reynolds. From that decree the respondent wife, Fannie Reynolds, prosecutes this appeal. Complainant alleged in his bill that he and respondent were married on May 27, 1939, and they lived together as man and wife until November 15...
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90 So.2d 770 (1956) Nellie ELLIS as Administratrix, v. BLACK DIAMOND COAL MINING CO. 6 Div. 777. Supreme Court of Alabama. November 15, 1956. *771 Lipscomb & Brobston, Bessemer, and Wm. Mitch and D. G. Ewing, Birmingham, for appellant. Lange, Simpson, Robinson & Somerville, Birmingham, and Huey, Stone & Patton, Bessemer, for appellee. GOODWYN, Justice. On May 28, 1949, Nellie Ellis, as administra...
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Pursuant to authority given by Code 1940, Tit. 37, § 735, the City of Demopolis adopted a general license ordinance for the year 1951 providing, in pertinent part, as follows: “Section 1. That every person, firm or corporation engaging in or carrying on any exhibition, trade, business, vocation, occupation, or profession within the City of Demopolis, Alabama, during the year 1951, shall take out a...
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This is an appeal from a decree overruling respondent’s demurrer to a bill in equity. The bill alleges that the legal title to the land in question is vested in the complainants as trustees for Township 21, Range 11, Randolph County, Alabama; that said title was obtained by warranty deed in the year 1895, a copy of said deed being attached to and made a part of the bill. The deed stated the purpos...
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90 So.2d 743 (1956) STATE of Alabama v. BAY TOWING & DREDGING COMPANY, Inc. 1 Div. 595. Supreme Court of Alabama. November 15, 1956. *744 John Patterson, Atty. Gen., and H. Grady Tiller and Willard W. Livingston, Asst. Attys. Gen., for appellant. Vickers & Thornton, Mobile, for appellee. GOODWYN, Justice. In August, 1953, the State Department of Revenue made a final assessment of use tax ...
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90 So.2d 822 (1956) Henry LOVELACE v. Iva Lee McMILLAN and Ed Leigh McMillan. 3 Div. 738. Supreme Court of Alabama. November 15, 1956. Howard J. Kearley, Brewton, for appellant. Caffey, Gallalee & Caffey, Mobile, for appellees. SPANN, Justice. This is an appeal from a final decree in equity reforming a deed executed by appellees to appellant on the ground of mutual mistake. The deed was one of ba...
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This is a statutory ej ectment suit brought by appellees against appellants to recover possession of a tract of land bordering on what is now known as Robinson’s Bayou, near Dog River in Mobile County. The case was tried without the intervention of a jury, the evidence being taken orally before the trial judge. From a judgment in favor of plaintiffs, the defendants prosecute this appeal. I...
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This is an appeal from a decree overruling respondent’s demurrer to a bill in equity for a declaratory judgment. The bill alleges, in substance, that appellee-complainant filed in the Limestone County Court, at Law, a suit for damages against appellant-respondent. The complaint was in two counts, one charging simple negligence and the other for willful and wanton injury. A jury trial was had which...
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90 So.2d 818 (1956) Walter L. HOWARD, Jr., as Administrator, v. Margaret B. IMES. 6 Div. 861. Supreme Court of Alabama. November 15, 1956. Gillespy, Dominick & Fletcher, Birmingham, for appellant. Marvin Cherner, Birmingham, for appellee. GOODWYN, Justice. The complainant, Birmingham Trust National Bank, having in its possession certain funds claimed by respondent-appellee, Margaret B. Imes, ...
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The State Department of Revenue on January 22, 1953, made a final sales tax assessment against the City of Anniston based on gross receipts from five swimming pools and one golf course operated by that city through its Park and Recreation Board. The assessment covered a period of time beginning on August 1, 1949, and ending August 31, 1952, and is in the amount of $743.50, which amount includes ta...
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This is a suit for libel by Claude Shell (appellee) against the American Life Insurance Company and its President, Thomas W. Wert (appellants), for publishing the following alleged defamatory matter by writing it in a letter to the plaintiff and sending a copy thereof to a Mr. Forsyth, a business associate of the plaintiff. The letter is as follows. “American Life Insurance Company “B...
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On March 8, 1955, William H. Ward recovered a judgment in a tort action against Harding Harris in the Intermediate Civil Court of Birmingham, in the amount of $253. On March 15 Harris filed a petition in bankruptcy, scheduling the judgment debt. He listed among his assets a tract of real estate which he claimed was exempt as his homestead. The referee in bankruptcy entered an order setting aside a...
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Appellant filed suit against appellees, who were nonresidents of the State of Alabama, in the Circuit Court of Covington County on March 27, 1956, claiming damages for personal injuries sustained in an automobile accident in Conecuh County. Personal service was perfected on each of the appellees by the Sheriff of Escambia County on March 29, 1956. Within 30 days, the appellees filed a joint ple...
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This is an appeal by H. E. Sarber and Willie Looney Messer, who were defendants in a suit for damages by plaintiff (appellee) suing as the father of Bryant Hollon, a minor, for injuries caused to him by Messer while acting in the line and scope of his authority as the agent, servant or employee “of the defendants”; the complaint alleging that he so negligently operated “defendant’s truck,” etc....
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90 So.2d 828 (1956) JAMES A. HEAD & COMPANY, Inc. v. Fred ROLLING et al. 6 Div. 954. Supreme Court of Alabama. September 13, 1956. Rehearing Denied November 29, 1956. *832 Lange, Simpson, Robinson & Somerville, Reid B. Barnes, Jas. A. Simpson and Dan J. Meador, Birmingham, for appellant. Lucien D. Gardner, Leigh M. Clark, J. Asa Rountree, III, and Cabaniss & Johnston, Birmingham, for ...
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The decree in this cause is identical with that in the case of James A. Head & Co., *347Inc. v. Fred Rolling, Ala., 90 So.2d 828,1 except that this decree is concerned primarily with respondent Carl W. Bryson, instead of respondent Fred Rolling. On the authority of the decision in James A. Head & Co. v. Fred Rolling, supra, the decree of the lower court is affirmed. Affirmed. LIVINGSTON, C. J., an...
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This is a suit under the homicide statute, § 123, Title 7, Code 1940, by appellant, as administrator of the estate of B. L. Lemons, deceased, against appellee to recover damages for the alleged wrongful death of the intestate. The case was submitted to the jury on Counts 1 and 1A charging negligence, Counts 2 and 2B, charging willful or wanton conduct, and on the plea of the general issue and on f...
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The Circuit Court ordered the petitioner to bring certain books, documents and papers into court on a certain date for inspection by the State of Alabama in a cause filed by the Attorney General on behalf of the State against the petitioner. On the date set to produce, the court granted the petitioner eight additional days within which to comply with its order. Thereafter the co...
Views: 9
It is the established rule of this Court that the proper method of reviewing a judgment for civil contempt of the kind here involved is by a petition for common law writ of certiorari, and this Court has through the years felt impelled to grant the writ for the purposes of review where a reasonable ground for its issuance is properly presented in such petition. But the petitioner here has not a...
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This case is submitted to this Court on motion of the Attorney General to strike the petition for writ of certiorari and the brief of petitioner, and on the merits....
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Irvin W. Crenshaw died in March 1936, leaving a last will and testament whereby he devised all of his property, real, personal and mixed, to his wife Lillie T. Crenshaw, for and during her natural life, and at her death to go in fee simple to her nephew, Leslie Elmore, with the absolute power of disposition of any or all of the property in Lillie T. Crenshaw during her lifetime as she deemed best....
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Clarence Johnson (appellant) was indicted for murder in the first degree. On a plea of not guilty trial of the case resulted in a conviction of murder in the first degree and a sentence of death. Motion for a new trial was overruled. This appeal followed. The alleged homicide was committed about seven or eight A.M. on Sunday morning of January 1, 1956, near Camden, Alabama. The testimony showed...
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Appellants having lost their case and suffered judgment for $2,500 and costs in the court below, undertook to execute a supersedeas bond as provided by Section 793, Title 7, Code 1940, rather than security for costs only as provided by Section 792, Title 7, Code 1940. Approximately eighteen days before the cause was submitted here, the appellee filed in this court a written motion to dismiss the a...
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91 So. 2d 489 (1956) RAILWAY EXPRESS AGENCY, Inc., v. ALABAMA PUBLIC SERVICE COMMISSION and Capital Motor Lines. 3 Div. 714. Supreme Court of Alabama. December 21, 1956. *491 Knabe & Nachman, Montgomery, for appellant. John Patterson, Atty. Gen., and Hill, Hill, Stovall & Carter, Montgomery, for appellees. LIVINGSTON, Chief Justice. On March 24, 1953, Capital Motor Lines, a motor carrier ...
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This case concerns the validity of an estate tax assessment in the amount of $194.24, plus interest of $33.51, making a total assessment of $227.75. The Department of Revenue of Alabama made the assessment basing its computation on the estate tax levied by the Federal Government under the provisions of Alabama Code 1940, Title 51, § 432. The taxpayer took an appeal from the tax assessment to the C...
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This is an appeal from a decree of the circuit court of St. Clair County, southern judicial division at Pell City, in equity, overruling appellant’s demurrer to appellee’s bill for divorce. As argued here, the question presented is whether the bill shows on its face that the circuit court of St. Clair County, southern judicial division at Pell City, in equity, does not have jurisdiction to enterta...
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This is an appeal from a final decree of the Circuit Court of Montgomery County, Alabama, In Equity, granting complainants relief sought for, which included a declaration of the rights of the parties under a written lease agreement, and the effect of the decree was to preclude appellants from pleading the Statute of Frauds because of the doctrine of equitable estoppel, and had the further effect o...
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This is an appeal from a judgment in favor of the plaintiff-appellee rendered by the Circuit Court of Madison County. The cause was tried without a jury. The plaintiff’s claim for damages arose out of an alleged fraudulent misrepresentation made by appellants’ agent in connection with the sale of a refrigeration unit by the defendants-appellants to the plaintiff-appellee. The appellee was ...
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This cause comes here on appeal by James T. Merrill, Individually and separately as administrator of the estate of A. F. Merrill, deceased, and of Annie R. Merrill, deceased, from a decree overruling his demurrer to a bill in equity by Manine Merrill Zera against the said James T. Merrill, individ*392ually and separately as administrator of the two named' estates, and against Mary M. Johnson. Mary...
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The majority of this Court entertains the view that the conclusion reached by the Court of Appeals is correct. For the purposes of this opinion, the relevant facts will appear in the dissenting opinion of Mr. Justice MERRILL of this Court and the opinion of the Court- of Appeals. The underlying rational of the majority of the Court is that the defendant had the right to waive his plea of former je...
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The appellee, complainant below, brought a suit in equity against appellants, respondents below, seeking specific performance of an oral agreement for lease of real estate and an injunction to restrain respondents from interfering with complainant’s possession of the property. The trial court rendered a decree granting the relief prayed for. This appeal is by the respondents from that decree. T...
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This is an action in the nature of ejectment by appellee against appellant for the recovery of a house and lot situated on the highway some 10 or 15 miles from Bessemer which had been owned and occupied by W. H. Brown. The case went to the jury on count 4 of the complaint which claimed the land and “damages in the amount of $10,000.00 for the detention *406thereof, loss of mesne profits and damage...
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This is a petition by M. Hochman for writ of certiorari to the Court of Appeals to review and revise the decision of that court in the case of Hochman v. State, 91 So.2d 495. We have no alternative but to strike the petition because not presented on transcript paper as required by Revised Supreme Court Rule 32, Code 1940, Title 7, Appendix. Duckett v. State, 257 Ala. 589, 60 So.2d 357; Stovall v. ...
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Appeal from an interlocutory decree-sustaining the appellees’ demurrer to the-bill of complaint as amended. The amended bill was filed by the appellant to have set aside, as void, a certain mortgage foreclosure deed which conveyed several parcels of land situated in Geneva County. The mortgage was executed on January 1, 1920, by one J. N. McDuffie, now deceased, through whom the-appellant claims a...
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This is an appeal from a final decree of the Circuit Court of Marshall County, In Equity. By its decree the Circuit Court held that the present suit is barred by a prior decree of that court and dismissed the cause. Appellant and appellee, Lucy and Grundy Maroney, were lawfully married to each other on December 5, 1909. On May 17, 1948, appellee, Grundy Maroney, filed suit against the appellant fo...
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This is an appeal from an interlocutory decree of the trial court overruling the appellant’s demurrer to a bill for specific performance of an executory contract for the sale of certain real property. The demurrer attacked the sufficiency of the bill on several grounds, but only two propositions are argued in brief. Discussion will, therefore, be limited to these. ' The appellant contends that the...
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This bill was filed by the widow of a decedent with the purpose of assigning dower and homestead in certain land owned by the decedent prior to the marriage. To this *416 end, the bill sought to cancel the deed to such land alleged to have been executed by decedent before marriage, because the deed was made in contemplation of marriage with complainant and in fraud of her prospecti...
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This is an appeal from a decree in equity overruling the demurrer of R. Lee Burleson, appellant, to the bill of complaint filed by Betty Ruth Burleson, appellee, for a decree of divorce under Sec. 22, Title 34, Code of 1940, 1955 Cum.Pocket Part. The pertinent provisions of Sec. 22 provide as follows: “In favor of either party to the marriage when the other has committed actual violence on his or ...
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A. M. Dunivant brought suit in the circuit court of Jefferson County against Atlantic Coast Line Railroad Company to recover damages for personal injuries alleged to have been sustained by him while he was in the employ of the defendant as a freight train conductor and while engaged in the line of duty handling interstate commerce. The original complaint consisted of four counts. Count 1 sought to...
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This is an action by Ruby Gibson (appellant) against Edward W. McDonald, as administrator of the estate of Howard Wallace Fortenberry, deceased (appellee), for damages for personal injuries alleged to have been sustained in an accident which occurred on the 28th day of June 1953 at or near the intersection of 29th Street and 35th Avenue North in the City of Birmingham, Alabama. At the time the pl...
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The appellant brought suit against Horace A. Fordham and Lynn Council, individually, and A & A Used Cars, a partnership composed of Fordham and Council, to recover for injuries sustained in an automobile accident. The theory of the suit was that the injury was inflicted by the defendants through their agent, James R. Carter, while acting within the line and scope of his authority. The evidence sho...
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This is an appeal by respondent from a final decree in equity, dated and filed April 27, 1956. There had been another final decree dated January 21, 1956, which dissolved a partnership between complainant and respondent, dismissed the cross-bill of respondent, and referred the cause to the register (later a special.master was substituted) to state an account between the parties as such partners, a...
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92 So.2d 1 (1957) E. E. DONAVAN v. John S. FANDRICH. 2 Div. 348. Supreme Court of Alabama. January 10, 1957. *2 Thos. Seay, Marion, for appellant. Judson C. Locke, Marion, for appellee. LAWSON, Justice. In 1950 John S. Fandrich was engaged in the business of selling fertilizer and seed. His place of business was in Belvidere, Tennessee. On two occasions in July of that year E. E. Donavan bought l...
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O. B. Mann (appellant) was convicted of murder in the first degree and sentenced to life imprisonment in the penitentiary. This appeal is solely upon the record. The appellant has the right to bring his case to this Court in this manner. Jones v. State, 237 Ala. 614, 188 So. 384. On November 17, 1955, pursuant to the authority vested in the judge by virtue of the Act of the Legislature which appea...
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The appellant, Amos Drake, was injured on February 5, 1952, while riding as a passenger in a bus being operated by the New Deal Riding Club. He procured a judgment against said Club in the amount of $2,500 and sought to enforce it by a third party action under a liability insurance policy issued to the Club by the appellee, Pennsyl*447vania Threshermen & Farmers’ Mutual Casualty Insurance Company....
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The petition for certiorari to the Court of Appeals must be stricken because it is not on transcript paper. Supreme Court Rule 32, Revised Rules of Practice in the Supreme Court, 1955 Cum. Pocket Part to Vol. 2, Code 1940, p. 233, 261 Ala. XXXI; Latham v. State, 262 Ala. 108, 77 So.2d 502; Duckett v. State, 257 Ala. 589, 60 So.2d 357; Williams v. State, 258 Ala. 638, 64 So.2d 617, and the many cas...
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Guy W. Hanna (appellant) filed a statutory bill to quiet title to about seven acres of land situated in Jefferson County on the old Montgomery Highway. The suit was instituted against Frank Ferrier and Edna Ferrier (appellees) and against Will F'. Franke and F. H. Cornelius, who were later stricken as parties respondent. The respondents Frank Ferrier and Edna Ferrier answered the bill of complaint...
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On December 7, 1955, petitioner sued Soundscriber Sales Corporation, et al. in trespass, trover and detinue. Defendant had notices and subpoenas duces tecum served on petitioner and one witness to take their depositions under the provisions of Act No. 375, Acts of Alabama 1955, Vol. II, page 901. Petitioner moved to strike the subpoenas on various grounds, including objections that the act was ...
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Thomas A. McKee, a resident of Macon County, died testate in June of 1922.' In his will, which was duly probated, he provided in pertinent parts as follows: “ * * * 2. After the payment of debts and funeral expenses I give, devise and bequeath, upon conditions hereinafter set forth, all of my property both real and personal to my wife, Mary L. McKee. Conditions: “a. Bequeath of realty is for ...
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The appellant, Roy Bradley, being confined in the county jail of Coffee County under an extradition warrant issued by the Governor of Alabama on request of the Governor of Louisiana, filed a petition with the Circuit Judge of Coffee County for a writ of habeas corpus. After a hearing, the circuit judge rendered a judgment discharging the writ of habeas corpus and ordering the petitioner released f...
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This is the second appeal in this case. Smith v. Hart, 259 Ala. 7, 65 So.2d 501. On the former appeal the bill of complaint was substantially set out in the opinion rendered by this court, where we held that the bill was not subject to the demurrer interposed. By reference to. that opinion and the amendments which we will set out in this opinion, the amended bill can be understood. The bill was am...
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This is a suit for damages wherein it is alleged that Lewell Taylor, a minor, sustained personal injuries as a result of the negligent operation of an automobile by an agent of the defendant, Brownell-O’Hear Pontiac Company. A jury trial resulted in a verdict and judgment for the plaintiff for $7,500. The defendant filed a motion for a new trial. From a ruling of the court granting the motion a...
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The original bill in this case was filed in the circuit court of Montgomery County, in equity, on February 26, 1954, by J. Ha-den Alldredge, against Security Life & Trust Company, hereafter referred to as Security. The subject of the litigation is a policy of insurance issued by Security on the life of Alldredge, which policy bearing date of October 1, 1930, was delivered to Alldredge on October 7...
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This is an original petition to this Court for leave to file a bill in the nature of a bill of review in order to review the judgment of this Court rendered on April 12, 1956, in the case of Carlisle v. McCleskey, 264 Ala. 436, 87 So.2d 831. The petition is filed here by reason of the principle stated in Faust v. Ragsdale, 253 Ala. 424, 44 So.2d 580. It affirmatively appears from the petition that...
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This cause was initiated by a petition in the Probate Court of Jefferson County by a daughter of Mrs. Grace H. Wilkinson, deceased, seeking to have five alleged void decrees previously rendered by said probate court vacated, annulled, and expunged. These decrees consisted of one of August 19, 1942, adjudging Mrs. Wilkinson to be a person of unsound mind, a decree of August 19, 1942, granting lette...
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This is an appeal from an interlocutory decree of the circuit court of Dale County, in equity. J. L. Weed on October 1, 1951, executed a deed wherein he conveyed to his wife, Ora L. Weed, approximately 210 acres of land situate in Dale County, which land we will refer to hereafter as the suit property. The deed recited a consideration of “One Hundred Dollars and other good and valuable considerati...
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Appellees filed a bill seeking a declaratory judgment as to their rights in fifty acres of land in Franklin County. The bill showed that Devaney and Wilson owned the tract in 1933 when they conveyed the surface rights to R. P. Millican, reserving the mining rights. In 1943, Millican conveyed his rights to appellant. In November, 1954, the executors and heirs of Devaney and Wilson, who are parti...
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This is an appeal by the plaintiff below from a judgment of nonsuit entered on his motion. § 819, Title 7, Code 1940. On and prior to October 9, 1954, E. L. Almon was doing business in the city of Cullman as Cullman Butane Gas Company. It appears that he sold supplies and materials of the kind used in school buildings and that articles of the kind secured from Almon were installed in the Holly Pon...
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On October 26, 1954, appellant, Nell' McCary, filed an ejectment suit against appellee, Frank McMorris, for Lot 12, according to the Nabers Land Company Survey of the 5th Addition to College Park. On March 4, 1955, the suit was removed to-equity on application by McMorris where he became complainant and Mrs. McCary respondent. Appellee’s bill alleges that in 1941,, Nabers Land Company, a c...
Views: 4
Macon Willis filed a bill in the Colbert Law and Equity Court, in equity, against C. W. Burns, alleging: “3. Your complainant alleges that on or about Jauuary 15, 1954, your complainant and the respondent agreed to enter into the relationship of landlord and tenant under a lease for a term of ten (10) years. That prior to the execution of said lease creating the relationship of landlord and tenant...
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*502In reply to your inquiry, we respectfully submit the following in answer to question numbered 3. We know that Act No. 32, supra, passed at a Special Session of the Legislature, March 23,1956, was amendatory of Act No. 343, passed at the Regular Session of the Legislature in 1955, and was enacted because Act No. 343 had appropriated money from the Alabama Special Educational Trust Fund in antic...
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Boykin appealed to the circuit court from a decision rendered by the Board of Zoning Adjustment wherein the Board sustained a decision of the Building Inspector of the City of Lanett in refusing to grant to Boykin a building permit. The circuit court, upon a trial de novo as authorized by § 783, Title 37, Code of 1940, reversed the decision of the Board of Adjustment and entered a judgment gran...
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On March 16, 1956, one A. C. Sprouse filed a petition in the juvenile court of Lamar County seeking to have Madeleine Ussery, a female child of the age of 13 years and a resident of Lamar County, declared a delinquent and adjudged a ward of the state. A similar petition was also filed in the same court on June 7, 1956, by Ray B. Hankins, a director of the department of pensions and security. Both ...
Views: 3
The proceedings on which this appeal is taken occurred in the Probate Court and Circuit Court of Mobile County. Appellant is executor of an estate being administered in the probate court. Appellee filed a claim against that estate. Under § 216 of Title 61, Code 1940, as amended by act approved July 1, 1943, appellant gave notice that the claim filed by appellee against said estate is disputed in w...
Views: 2
This is an appeal by the husband from the decree of a court of equity granting a divorce to his wife on the alleged ground of cruelty. There are two children of the marriage, a girl eleven years old and another girl ten years of age. The decree awarded custody to appellee and made provision for their maintenance by appellant. On this appeal the chief question relates to the divorce granted to the ...
Views: 4
The appellee brought a statutory ejectment action in the circuit court of Coffee County to recover the following tract of land: “A1 that portion of SEj4 of SW14, Section 15, Township 3, Range 19, lying east of Pea River, in Coffee County, Alabama.” The facts material to an understanding of the questions presented are as follows: The SE14 of the SW14 of Section 15 is split roughly in h...
Views: 7
This is an original petition to this Court for a mandamus directed to the judge of the circuit court of the Twenty-eighth Circuit sitting in Baldwin County, to require him to vacate an interlocutory order providing for the maintenance pendente lite of Mrs. Eva B. O’Connell in a suit in equity wherein she is complainant and this petitioner is respondent. In that suit maintenance without divorce is ...
Views: 0
This is an appeal by the plaintiff from a judgment rendered by the circuit court of Mobile County in favor of the defendant. The suit seeks recovery of past due installments of alimony awarded by decree of the Superior Court of Fulton County, Georgia. The judgment appealed from was rendered on March 5, 1956. The appeal was taken on September 4, 1956, within the six months allowed, Code 1940, Tit. ...
Views: 7
On this appeal our attention is directed primarily to the motion of appellee to dismiss the appeal. The motion is based on the theory that appellant is in contempt of court and, therefore, she is not in position to obtain its favorable consideration. The suit is for divorce and the custody of the children filed by appellant against appellee, and a cross bill filed by appellee for that relief in hi...
Views: 0
This is an appeal from a decree of the Circuit Court of Lamar County, In Equity, establishing a boundary line between lands of appellant on the north and lands of appellee on the south. The appellant, complainant below, filed his bill alleging that appellant and appellee are coterminous landowners; describing appellant’s land; also describing appellee’s land; and alleging the true boundary...
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This is an appeal from a final decree in equity rendered for the respondents in a suit wherein complainant sought to have a deed which he executed to them declared a mortgage and to enforce his equity of redemption. The deed was dated and executed May 21, 1953, and placed in escrow. Complainant is the father of respondents. The respondents are eight of his nine children. The land described in the ...
Views: 0
93 So.2d 143 (1957) Emmett W. TAYLOR v. N. J. JOHNSON. 3 Div. 759. Supreme Court of Alabama. February 28, 1957. Miles S. Hall and J. O. Sentell, Jr., Montgomery, for appellant. Robert Coburn, Jr., Montgomery, for appellee. SIMPSON, Justice. This appeal brings under review the constitutionality of § 260, Title 7, Code of 1940, as amended. The amending act is No. 74, General Acts of Alabama, 1953, ...
Views: 3
93 So.2d 151 (1957) Marle MICKWEE v. Ulma Lee BOTELER et al. 6 Div. 918. Supreme Court of Alabama. February 28, 1957. Robt. S. Gordon and Chas. Cleveland, Birmingham, for appellant. John A. Jenkins, Birmingham, for appellee Mary Nell Boteler. Lange, Simpson, Robinson & Somerville, Birmingham, for appellee Tel. Co. GOODWYN, Justice. Marie Mickwee, appellant here, filed a bill in the circuit court ...
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This is an appeal from a judgment for the defendant in a statutory action of detinue. The suit was before the court, without a jury, for the recovery of a certain 14i/¿ foot inboard motorboat. Appellee’s motion to strike the appellant’s brief for non-compliance with rules 9 and 11 of the Revised Rules of the Supreme Court, Code of 1940, Tit. 7 Appendix, will first be considered. Rule 11 requires t...
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This is a petition by Hugh W. McCain for certiorari to the Court of Appeals to review and revise the decision of that court in the case of McCain v. City of Montgomery, 92 So.2d 678. Petitioner was convicted in the recorder’s court of the City of Montgomery on a charge of assault and battery. He perfected an appeal to the circuit court of Montgomery County where his jury trial resulted in a verdic...
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92 So.2d 692 (1956) Myrtis GIBSON v. S. W. ANDERSON, Guardian. 4 Div. 879. Supreme Court of Alabama. December 21, 1956. Rehearing Denied February 28, 1957. *693 John C. Walters, Troy, and J. O. Sentell, Jr., Montgomery, for appellant. E. C. Orme, Troy, for appellee. GOODWYN, Justice. S. W. Anderson, as guardian of Herbert Leo Gibson, a minor (appellee), instituted a declaratory judgment proceedin...
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Hudson and Thompson, a partnership, brought suit in the Circuit Court of Pike-County against the First Farmers and Merchants National Bank of Troy, Alabama. The bank interposed a plea in abatement of the suit. After a judgment overruling Hudson and Thompson’s demurrers to the bank’s plea in abatement, Hudson and Thompson took a non-suit and appealed. The complaint in this cause consists of 3 count...
Views: 4
This is a petition for writ of certiorari to the Court of Appeals. The opinion of the Court of Appeals is set out in the petition. It is followed by these statements: “Your petitioner avers-, that the Court of Appeals erred in its decision of October 16, 1956, and that the same-should be reversed, and the Court of Appeals erred in denying petitioner’s application for rehearing. “All of said g...
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This case grows out of an episode or occurrence which took place on October 6, 1952, and which will be described later at greater length. Later in October, ■ 1952, a charge was preferred against Charles L. Stevens (appellee) a detective of the City of Birmingham who was a permanent classified employee under the Civil Service System of Jefferson County, Alabama. This charge was preferred before the...
Views: 2
The appellants filed a bill to quiet title to the S V2 of NE 14 of NW Va, Section 34, Township 21, Range 12 in Chilton County. The respondent filed a cross bill claiming to own about four acres in the northeast corner of the tract and claiming that her south boundary line is a branch which crosses the north and east lines of the twenty acres. Respondent claimed adverse possession of the four acres...
Views: 9
93 So. 2d 154 (1957) Sarah Mable WEBB v. BANK OF BREWTON. 3 Div. 777. Supreme Court of Alabama. January 10, 1957. Rehearing Denied March 7, 1957. *156 N. S. Hare, Monroeville, for appellant. Wm. G. Caffey, Mobile, and Hugh M. Caffey, Jr., Brewton, for appellee. PER CURIAM. This is a suit in equity filed by appellant to vacate and annul a mortgage executed by Goldie and C. W. Clayton, Jr., to appe...
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This is an appeal from a final decree of the circuit court of Blount County, in equity, ordering the sale of approximately 185 acres of land for division of the proceeds among the complainants and respondents below, whom the trial court found to be the joint owners of the land. For the purposes of this appeal it can be said that the complainants and the re*579spondents below constitute all of the ...
Views: 0
93 So.2d 428 (1957) Enoch BATTLE v. Radford MORRIS. 5 Div. 639. Supreme Court of Alabama. January 10, 1957. Rehearing Denied March 7, 1957. *430 Rushton, Stakely & Johnston, Montgomery, and Lange, Simpson, Robinson & Somerville, Birmingham, for appellant. Walker & Walker, Opelika, and W. C. Hare, Tuskegee, for appellee. STAKELY, Justice. Radford Morris (appellee) filed a bill in the C...
Views: 7
The petition for certiorari to the Court of Appeals must be stricken because it is not on transcript paper. Supreme Court Rule 32, Revised Rules of Practice in the Supreme Court, 1955 Cum.Pocket Part to Vol. 2, Code 1940, Appendix, p. 233, 261 Ala. XXXI; Conley v. State, ante, p. 450, 92 So.2d 9; Williams v. State, 258 Ala. 638, 64 So.2d 617; Duckett v. State, 257 Ala. 589, 60 So.2d 357. Subsequen...
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93 So.2d 146 (1957) T. B. BYRD et al., Members of Review Committee (of Geneva County), Production and Marketing Administration, United States Department of Agriculture, v. Buford G. SORRELLS. 4 Div. 828. Supreme Court of Alabama. January 10, 1957. Rehearing Denied March 7, 1957. *147 J. Stephen Doyle, Jr., Neil Brooks, Sp. Attys. Gen., Hartwell Davis, U. S. Atty., Ralph M. Daughtry, Asst. U. S. A...
Views: 2
The holdings of this Court in the case of Byrd v. Sorrells, ante, p. 589, 93 So.2d 146, are controlling in this case. Hence, the appeal is dismissed and petition for mandamus denied. LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur....
Views: 0
The holdings of this Court in the case of Byrd v. Sorrells, ante, p. 589, 93 So.2d 146 are controlling in this case. Hence, the appeal is dismissed and petition for mandamus denied. LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur....
Views: 0
This is an appeal from a final decree of the equity court denying relief to the appellant, Paulie Welch, doing business as Consolidated Roofing and Siding Company, under a bill in equity filed by the appellant seeking to establish a mechanic’s lien against the property of the appellee, L. F. Lee, for work and labor done by the appellant for the appellee in constructing a basement under the appelle...
Views: 5
93 So.2d 419 (1957) M. L. BROWN et al. v. CITY OF FAIRHOPE et al. 1 Div. 693. Supreme Court of Alabama. March 7, 1957. *420 Chason & Stone, Bay Minette, and Johnston, McCall & Johnston, Mobile, for appellants. Beebe & Swearingen, Bay Minette, for appellees. MERRILL, Justice. Appellants filed their complaints, consisting of two counts, against the appellees, the City of Fairhope, a municipal corpo...
Views: 12
This is an appeal by the State from a decree rendered by the Talladega Circuit Court, in Equity, on an appeal to it by a taxpayer from a use tax assessment of “sand” and “steel shot,” purchased and used by the taxpayer in and about the manufacture of cast iron pipe fittings. The trial court held that the purchase and use of such material were exempt as being parts of a machine used in manufacturin...
Views: 6
93 So.2d 515 (1957) ALABAMA GAS CORPORATION et al. v. Hugh MORROW, Jr. 6 Div. 64. Supreme Court of Alabama. March 7, 1957. *516 White, Bradley, Arant, All & Rose, Birmingham, for appellants. Dumas, O'Neal & Hayes, Sirote, Parmutt, Friend & Friedman, and Chas. Morgan, Jr., Birmingham, for appellee. LAWSON, Justice. Hugh Morrow, Jr., is a stockholder and director of Alabama Gas Corporat...
Views: 6
This is a companion case to the case of Alabama Gas Corporation v. Murrow, Ala., 93 So.2d 515.1 The principles discussed and approved by this court in the case just referred to are controlling in this case and upon its authority the judgment below is affirmed. Affirmed. LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. . Ante, p. 604. ...
Views: 0
93 So. 2d 498 (1957) ROBERTS CONSTRUCTION CO. v. C. L. HENRY, Jr. 6 Div. 39. Supreme Court of Alabama. March 7, 1957. *500 Lange, Simpson, Robinson & Somerville and Wm. L. Clark, Birmingham, for appellant. Maurice F. Bishop and Robt. S. Richard, Birmingham, for appellee. STAKELY, Justice. C. L. Henry, Jr. (appellee) instituted a suit in the Circuit Court of Jefferson County in which Roberts C...
Views: 1
This is an appeal from a decree overruling a demurrer to a bill which both parties designate as a bill in the nature of a bill of review. The decree in question was rendered on January 23, 1954, whereby this appellant was complainant in a suit for divorce against this appellee. That decree granted the divorce to appellant on the ground of voluntary abandonment; but the decree makes no mention of a...
Views: 0
93 So. 2d 757 (1957) James Seldon LEE v. STATE of Alabama. 7 Div. 303. Supreme Court of Alabama. March 14, 1957. *759 Roberts & Orme, Gadsden, for appellant. John Patterson, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State. LAWSON, Justice. James Seldon Lee was indicted for the offense of murder in the first degree by a grand jury of Etowah County and upon his trial upon sai...
Views: 38
93 So.2d 138 (1956) J. J. CLARK v. Durel HUDSON. 4 Div. 875. Supreme Court of Alabama. December 21, 1956. Rehearing Denied March 14, 1957. *139 Albert L. Rankin and Albrittons & Rankin, Andalusia, for appellant. Frank J. Tipler, Jr., Andalusia, for appellee. SIMPSON, Justice. The plaintiff recovered a judgment against the defendant in a personal injury action in the amount of $11,000. The case *1...
Views: 9
93 So.2d 741 (1957) Charles R. McGRAW v. Bert THOMASON. 7 Div. 338. Supreme Court of Alabama. March 14, 1957. *742 Copeland & Copeland, Gadsden, for appellant. Starnes & Holladay, Pell City, for appellee. MERRILL, Justice. Appellant, Charles McGraw, sued appellee, Thomason, seeking damages for libel. His wife, Hazel McGraw, sued by identical complaint in another case which is here as 7 Div. 339, ...
Views: 8
This is a companion case to that of Mc-Graw v. Thomason, 93 So.2d 741.1 The issues in the two cases are identical and the judgment of the lower court in this cause is affirmed upon the authority cited, supra. Affirmed. LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. . Ante, p. 635. ...
Views: 3
Appellant is a charitable corporation organized under laws of Alabama, with principal office in Birmingham. *642The' Department of Revenue of the State of Alabama levied an assessment against appellant for use tax. As provided by statute, appellant appealed to the circuit court, in equity, and there filed its bill of complaint. The bill prayed for a decree setting aside the assessment, and declari...
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This appeal is from a judgment of non-suit, requested by appellant when the trial court sustained demurrers to appellant’s Count Two, as amended, the only count then remaining on which appellant relied. Count Two claimed damages from Edgar P. Hogan, as owner and Mrs. A. E. Moore, as lessee of a large dwelling house which Mrs. Moore was using as a rooming house, for injuries received by appellant w...
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93 So.2d 164 (1956) Ex parte Reuben L. NEWTON. 6 Div. 763. Supreme Court of Alabama. October 4, 1956. Rehearing Denied March 14, 1957. Roderick Beddow, T. Julian Skinner, Birmingham, and J. O. Sentell, Jr., Montgomery, for petitioner. Harold M. Cook, Birmingham, for Board of Commissioners. John T. Batten, Birmingham, amicus curiae. PER CURIAM. This is a petition for review of the decision of the ...
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93 So.2d 526 (1957) Harold SHIFLETT v. STATE of Alabama. 7 Div. 357. Supreme Court of Alabama. March 14, 1957. *527 Love & Hines, Talladega, for petitioner. John Patterson, Atty. Gen., and Wm. C. Younger, Asst. Atty. Gen., opposed. LAWSON, Justice. This cause is before us on petition for writ of certiorari to review and revise the opinion and judgment of the Court of Appeals in the case of Shifle...
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This is an appeal by the taxpayers and citizens of the town of Georgiana from a final decree of the circuit court of Butler County, in equity, validating certain warrants proposed to be issued by the town. The proceeding to validate was brought by the town and its governing body under the provisions of Code 1940, Tit. 7, §§ 169-176. On March 19, 1956, the town, purporting to act under the authorit...
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93 So. 2d 509 (1957) WHITE WAY PURE MILK COMPANY v. ALABAMA STATE MILK CONTROL BOARD. 3 Div. 774. Supreme Court of Alabama. March 14, 1957. *510 Gilchrist & Murphree, Decatur, for appellant. No appearance for appellee. LAWSON, Justice. White Way Pure Milk Company, a partnership composed of C. E. Winton and Emmette L. Barran, referred to hereafter as White Way, is a distributor-licensee of the...
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93 So. 2d 522 (1957) Forrest ADKINS v. STATE of Alabama. 7 Div. 359. Supreme Court of Alabama. March 14, 1957. John Patterson, Atty. Gen., and Robt. G. Kilgore, Jr., Asst. Atty. Gen., for the petition. Wales W. Wallace, Jr., and Handy Ellis, Columbiana, opposed. MERRILL, Justice. The single ground insisted upon in petition for writ of certiorari, filed by the Attorney General, is that the Court o...
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This bill was filed in the circuit court of Henry County, in equity, in November of 1955 by G. W. Walden against A. D. Walden and Mrs. Bannie Womack. The bill alleges that the conplainant, G. W. Walden, owns an undivided one-half interest in certain described real property situate in the town of Headland and that each of the respondents owns an undivided one-fourth interest in that property, which...
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The original bill was filed by J. S. Hardee and forty other persons against J. W. Hardee. Two of the original complainants were stricken and several other persons were added as parties complainant by amendments. The bill as amended alleges that the complainants and the respondent are the joint owners of approximately eighty acres of land situate in Conecuh County, to which we will sometimes refer ...
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This is an appeal from a judgment of the Circuit Court of Colbert County, Alabama, awarding appellants $275 for property condemned for highway construction purposes. The appellee moved to affirm the judgment appealed from in this cause for want of legal assignment of errors. The appellants moved to set aside submission of the cause and be allowed to bind the assignment of errors within the transcr...
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93 So. 2d 763 (1957) BRITISH GENERAL INSURANCE COMPANY, Ltd. v. SIMPSON SALES COMPANY, Inc. 6 Div. 615. Supreme Court of Alabama. March 21, 1957. *765 Marvin Williams, Jr., Davies & Williams, Birmingham, for appellant. Victor H. Smith, A. W. Jones and Pritchard, McCall & Jones, Birmingham, for appellee. GOODWYN, Justice. This is the third time this dispute has been before this court. The ...
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Petitioner, Hamilton Green Jackson, tried on an indictment charging first degree murder, was convicted of manslaughter in the second degree. He appealed to the Court of Appeals, where the judgment was affirmed, and now applies for certiorari. The petition specifies four grounds. The first ground is that the Court of Appeals erred in affirming the action of the trial court in refusing requested cha...
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PER CURIAM. Appeal dismissed. Rule 12....
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Petition of Moses Arthur for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Arthur v. State, 93 So.2d 793. Writ denied. SIMPSON, GOODWYN and COLEMAN, JJ., concur....
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Writ denied, petition dismissed; LIVINGSTON, C. J., and SIMPSON, GOODWYN and COLEMAN, JJ., concur,...
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Petition of Brotherhood of Railroad Trainmen Ins. Dept., Inc., for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Brotherhood of Railroad Trainmen Ins. Dept. v. Pemberton, 93 So.2d 797. Writ denied. LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur....
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Petition of Andrew Butler for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Butler v. State, 93 So.2d 441. Writ denied. LAWSON, STAKELY and MERRILL, JJ., concur....
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Petition of Faye Chicarella for certiorari to the Court of Appeals to review and *695revise the judgment and decision of that Court in Chicarella v. State, 93 So.2d 802. Writ denied. LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur....
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Affirmed. LIVINGSTON, C. J., and SIMPSON, GOODWYN and COLEMAN, JJ., concur....
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Appeal dismissed. Rule 12....
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Petition of Eugene Fuller for certiorari to the Court of Appeals to review and revise the judgment -and decision of that Court in Fuller v. State, 90 So.2d 244. Writ denied. SIMPSON, GOODWYN and MERRILL, JJ., concur....
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Petition of Stancel J. Gilliam for certiorari to the Court of Appeals to review *696and revise the judgment and decision of that court in Gilliam v. State, 89 So.2d 584. Writ denied. LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur....
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Writ denied. LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur....
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Petition of Carl' Frank Hand for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Hand v. State, Ala., 93 So.2d 435. Writ denied. LAWSON, STAKELY and MERRILL,JJ., concur....
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Petition of Selma L. Henderson for certiorari to the Court of Appeals to review and revise the judgment and decision of' that court in Henderson v. State, 89 So.2d 580. Writ denied. SIMPSON, MERRILL, and SPANN,. JJ., concur....
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On authority of the decision this day-rendered in Hill Grocery Co. v. Wilson, ante, p. 49, Ala., 89 So.2d 687, the judgment in, the present case is affirmed. LIVINGSTON, C. J., and LAWSON.' and MERRILL, JJ., concur....
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Writ denied. LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur....
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Petition of Rosa Lee Holloway for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Holloway v. State, 89 So.2d 313. Writ denied. LIVINGSTON, C. J., and SIMPSON, and MERRILL, JJ., concur....
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The Court has decided that the petition for certiorari must be stricken because it was not filed within the time required by law. We would like to add, however, that a careful consideration of the petition for certiorari shows that it is without merit. Petition for Certiorari stricken. LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur....
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Appeal dismissed. Rule 12....
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Petition of the State, by its Attorney General, for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Lowman v. State, 91 So.2d 697. Writ denied. LIVINGSTON, C. J., and SIMPS.ON and SPANN, JJ., concur....
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Petition of Joyce Leeds Jewelry Company, Inc. for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Joyce Leeds Jewelry Co. v. Lambeth, 92 So.2d 42. Writ denied. . LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur....
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The averments of the petition for writ of certiorari in this cause are insufficient to warrant the issuance of the writ. The petition is, therefore denied. All the Justices concur. ...
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Rule nisi denied, petition dismissed. LIVINGSTON, C. J., and SIMPSON, GOODWYN and COLEMAN, JJ., concur....
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Petition of S. M. Porch for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Porch v. State, 89 So.2d 694. Writ denied. LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur....
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Petition of the State, by its Attorney General, for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Schenher v. State, 90 So.2d 234. Writ denied. LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. ...
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After this cause was submitted, the parties by their respective counsels of record, have filed a motion, the intent and purpose of which is to dismiss this case out of court. Pursuant to this agreement, the decree of. the lower, court is reversed and the cause is remanded that the case may be disposed of in accordance with said agreement. Reversed and remanded. LIVINGSTON, C. J., and GOODWYN and C...
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On authority of the decision this day rendered in the case of State of Alabama v. INatco Corporation, ante, p. 184, 90 So. 2d 385, the decree of the circuit court in this case is due to be affirmed. Affirmed. LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur....
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Petition dismissed....
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Writ denied....
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Appeal dismissed by agreement....
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