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All Reporters → ala-lexis → Volume 1956

Opinions in ala-lexis Volume 1956

This is an appeal by Bena K. Ellison, as Administratrix of the Estate of LeRoy Kilpatrick, Deceased, one of the respondents below, from a decree overruling her demurrer to appellee’s bill seeking relief under the Declaratory Judgments Act, Code 1940, Tit. 7, § 156 et seq. The purpose of the bill is to secure a declaration as to complainant insurance company’s liability under an automobile liabilit...
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This is an appeal from an interlocutory decree in equity overruling demurrer to the bill of complaint as amended. The bill sought a discovery, accounting and cancellation of a deed. The allegations to the stated end are sufficient to give the bill equity. The demurrer was to the bill as a whole and since the bill contains equity the demurrer was properly overruled. Smith v. Smith, 251 Ala. 694, 3...
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This is an appeal by the acting probate Judge of Etowah County from a decree of the circuit court of said county, in equity, quashing and declaring void and of no effect “all orders, decrees or certifications” made by said judge in proceedings in the probate court incorporating the town of Southside. In the alternative, appellant petitions for mandamus. On November 29, 1952, appellees filed a bill...
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84 So. 2d 664 (1956) O. H. PIGFORD, D/B/A Pigford Farm Equipment Company v. B. M. BILLINGSLEY. 3 Div. 709. Supreme Court of Alabama. January 12, 1956. *665 W. Clarence Atkeison, Prattville and Glen T. Bashore, Clanton, for petitioner. H. T. Fitzpatrick, Jr., Montgomery, opposed. MAYFIELD, Justice. This case comes to us on the petition of O. H. Pigford for certiorari to the Court of Appeals to rev...
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84 So. 2d 748 (1956) W. R. MOORE v. R. C. COOKE. 6 Div. 781. Supreme Court of Alabama. January 19, 1956. *749 Robert D. Norman, Birmingham, for appellant. Bainbridge & Mims, Birmingham, for appellee. LAWSON, Justice. This is an action in damages for property damage and for personal injuries arising out of a collision between an automobile owned and driven by defendant and an automobile owned ...
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84 So. 2d 752 (1956) E. C. MOORE, as Adm'r, v. Myrtle A. STEPHENS, as Adm'x. 6 Div. 722. Supreme Court of Alabama. January 19, 1956. *753 Walter G. Woods, Tuscaloosa, for appellant. Dominick, Rosenfeld, Roberts & Beatty and Samuel A. Beatty, Tuscaloosa, for appellee. MERRILL, Justice. Appellant, plaintiff below, sued appellee alleging a cause of action for wrongful death under Title 7, Sec. 1...
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This is a suit instituted by Curtis Mixon (appellant) against W. L. Trawick (appellee) for $2,000 as damages for the alleged breach of a contract of purchase and sale of six Duroc Jersey gilts. ^,The complaint as originally filed consisted of one count to which demurrer was sustained. When the demurrer to count one was sustained, count two was filed to which demurrer was sustained. When the demurr...
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The question here presented is whether an appeal to the circuit court from an order of condemnation made pursuant to Sec. 16, Title 19, Code 1940, is required by Sec. 17, Title 19, Code 1940, or any other statute, to be effected by executing a bond or giving security for costs. The town of Centre, Alabama, petitioned the Probate Court of Cherokee County to condemn certain lands belonging to C. O. ...
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Honorable James E. Folsom Governor of Alabama State Capitol Montgomery, Alabama Dear Sir: Receipt is acknowledged of your inquiry of January 27, 1956, which is as follows: “Pursuant to the Authority vested in me by Section 34, Title 13, Code of 1940, I respectfully submit for your *111opinion the following constitutional question : “If during a Special Session of the Legislature a proposal for a c...
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*77The House of Representatives State Capitol Montgomery, Alabama Dear Sirs: We are in receipt of House Resolution 12, adopted January 10, 1956, which is as follows: “H.R. #12 By: Mr. Kelly “A Resolution Requesting Advisory Opinions of the Justices of the Supreme Court of Alabama Relative to H.B. 128 “Resolved by the House of Representatives, that the Justices of the Supreme Court of Alabama or a ...
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84 So. 2d 770 (1956) Willie GETER v. UNITED STATES STEEL CORP. 6 Div. 966. Supreme Court of Alabama. January 19, 1956. *771 Lipscomb, Brobston, Jones & Brobston, W. E. Brobston and Jerry Stapp, Bessemer, for appellant. J. R. Forman, Jr., C. V. Stelzenmuller and Burr, McKamy, Moore & Thomas, Birmingham, for appellee. PER CURIAM. This review is by certiorari to test the conclusions of law r...
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Petition of Herman Hall for certiorari to the Court of Appeals, to review and revise the judgment and decision of that Court in Hall v. State, 84 So.2d 777. Writ denied. LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur....
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This bill was filed in the circuit court of Sumter County, in equity, by the County Board of Education of Sumter County, Alabama, against J. Florence Woods to recover possession of land in. Sumter County and the building thereon, the restoration of the building to a like condition as when respondent took possession of it, and to restrain respondent from further occupancy of the property. The respo...
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Appellant was convicted of murder in the first degree and sentenced to death by electrocution. His appeal is here under the provisions of the Automatic Appeal Statute. Act No. 249, appvd. June 24, 1943, Gen.Acts 1943, p. 217, Code 1940, Tit. 15, § 382(1) et seq., Pocket Part. The indictment charges that appellant “unlawfully and with malice aforethought, killed Thomas J. Plarper, by shooting hi...
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This is a suit in equity for the condemnation of an automobile under authority of section 247, Title 29, Code. *135 The trial court overruled a demurrer to the bill of complaint, and defendant has appealed. Appellee has made a motion in this Court to dismiss the appeal. The motion to dismiss is based on two theories: (1) That appellant’s brief was filed on November 11, 1...
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Appellant here appeals from a final judgment dismissing his petition for mandamus directed to appellee as chairman of the Blount County Democratic Executive Committee. The court had sustained a demurrer to his petition, which he declined to amend, thus causing the dismissal. That is one method of reviewing a ruling of the court sustaining a demurrer to a petition or complaint. The ruling is assign...
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Appeal dismissed. LIVINGSTON, C. J., and LAWSON, STAKELY and MAYFIELD, JJ., concur....
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The House of Representatives State Capitol Montgomery, Alabama. Dear Sirs: We are in receipt of House Resolution No. 14, which reads: “Whereas, important constitutional questions are presented by House Bill No. 70 (copy of which is hereto attached) now pending in the Legislature of Alabama; “Now, Therefore, Be It Resolved by the House of Representatives of Alabama that the Justices of the Supreme ...
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This is an appeal from a decree of the circuit court of Montgomery County, in equity, overruling the demurrer interposed by appellant to the bill, which the reporter will set out in the report of the case. The bill presents an unusual situation and the research which the writer has made has pointed up the wisdom of our rule to the effect that on an appeal from a decree overruling a demurrer to a b...
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This cause came here on appeal by respondents from a decree c verruling the demurrer to a bill in equity. *191The purpose of the bill is to foreclose a mortgage. The allegations of the bill sufficiently show the execution of a mortgage in which there was default in its payment specifying the amount thereof. That is the only purpose of the bill and it has but one aspect. The demurrer to so-called a...
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This appeal is from a judgment of the Circuit Court of Mobile County setting aside the verdict of the jury and judgment rendered thereon and granting a new trial to the appellee. The sole matter assigned as error is the action of the trial court in granting the motion for a new trial. *209Appellee, plaintiff below, sued on a lightning and windstorm insurance policy claiming that the property insur...
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This is an appeal by the Guardian ad litem from a decree of the Circuit Court of Montgomery County, In Equity, denying the ward of appellant the right to share in the estate of her adoptive parent, who had executed a will prior to the adoption. In 1953, Lillian Stone made a will leaving all her property to her adult daughter, Irene Smith. In 1954 Mrs. Stone adopted Catherine Stone, the min...
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This appeal is from a decree of the Circuit Court of Pickens County, in Equity. Appellee, complainant and cross respondent below, filed a bill on August 25, 1954, in which she sought a divorce from appellant, custody of a minor child, Sharon Spencer, two and one-half years old, and alimony for support and maintenance. The bill alleged, inter alia, that on the 9th day of August, 1954, while appelle...
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This cause is here on petition by Jefferson Life & Casualty Company, a corporation, for writ of certiorari to the Court of Appeals to review and revise the opinion and judgment of that court in the case of Jefferson Life & Casualty Co. v. Bevill. Petitioner argues strenuously that its demurrer was sustained to the entire complaint and inasmuch as the plaintiff in the trial court thereafter failed ...
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Appellee sued appellant for a divorce, alleging cruelty. The trial court, after taking the testimony ore tenus, granted the divorce on that ground, awarded alimony to appellant and required appellee to pay an attorneys’ fee for appellant under her cross bill. The only question presented on the merits is the sufficiency of the evidence to support the decree of divorce. We have carefully consider...
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C. B. Williams filed his bill in the circuit court of Coffee County, in equity, on July 18, 1955, against Robert E. Mitchell seeking the dissolution of their alleged farming partnership, an accounting between the partners, and appointment of a receiver. On the day the bill was filed the trial court set July 27, 1955, for the hearing of the application for the appointment of a receiver. On July 26,...
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This is an appeal from a judgment of nonsuit to review a judgment overruling demurrers to pleas. The judgment of nonsuit is in good form and complete in that respect. It recites that it is taken 'by plaintiff to review the judgment upon rulings on demurrer to pleas 3, 4 and 5. The assignments of error are as to those rulings. But the record as originally certified did not contain a judgmen...
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This is an appeal from a judgment of the Circuit Court of Covington County in the sum of $12,000 damages for personal injuries, which was rendered in favor of appellee, plaintiff below. The cause was submitted on motion to dismiss the appeal and on the merits. On the motion. Appellee moves that the transcript of the record be stricken because it was not filed in compliance with Rule 37, Revised Ru...
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The only question in this case is one of fact. That is, whether the instrument admitted to probate in the probate court was executed by Otis B. Hancock as his will. A bill was filed in equity to contest the will under section 64, Title 61, Code. At the outset it is important to know where is the burden of proof. When there is a contest in the probate court under section 52, Title 61, Code, the bur...
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This suit was brought by Edward L. Hardy, as administrator, under the homicide statute, § 123, Title 7, Code 1940, against Mobile City Lines, Inc., to recover damages for the alleged unlawful death of his son, James Wendell Hardy. Plaintiff’s son lost his life as a result of a collision between a motorcycle upon which he was riding and a bus belonging to the defendant, which was being driven by...
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The motion of appellee to dismiss the appeal must prevail. The decree overruling appellants’ motion to dismiss the complaint as amended is not such a final decree as will support an appeal. Huie v. Smith, 238 Ala. 81, 189 So. 729. Nor is it within the influence of the provisions now codified as *224§ 755, Title 7, Code 1940, authorizing appeals from certain interlocutory decrees. There was filed i...
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This is an appeal from a final decree of the circuit court of Pickens County, in equity, declaring in favor of appellee, complainant below, a lien on certain lands located in said county. As last amended, the bill of complaint sought to have declared in favor of com-, plainant a trust on the lands or, in the alternative, that a lien be impressed thereon in his favor. The basis for such relief is t...
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This suit was brought in the circuit courf; of Mobile County by Ben A. Zemczonek against Charles R. McElroy and Baggett Transportation Company, Inc., a corporation. The plaintiff sued under the homicide statute, § 119, Title 7, Code 1940, as father of Leonard V. Zemczonek, a minor, who lost his life as a result of a collision between Baggett’s truck and an automobile owned by McElroy, in which ...
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This appeal is from a decree overruling respondents’ demurrer to the bill of complaint. The bill was filed by the appellee, Mary P. Bragg, under the Declaratory Judgment Act, Code 1940, Tit. 7, § 156 et *241seq., seeking a construction of the will and codicil of Annie M. Carson. The respondents, appellants here, are the executor and residuary devisees and beneficiaries under the last will and test...
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This is an appeal from a judgment of the Circuit Court of Perry County denying appellant’s petition for a peremptory writ of mandamus to be directed to the County Board of Education, the members of said Board, and the County Superintendent of Education, to reinstate appellant as a teacher. Appellant has attained “continuing service status” under the Teachers’ Tenure Law, Tit. 52, § 351 et seq., C...
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This is an appeal by Annie Dell Cloud from a decree of the circuit court of Houston County, in equity, overruling her demurrer to the amended bill filed against her by Barbara Dell Gamble. The purpose of the bill was to secure a decree cancelling a mortgage foreclosure sale and the deed executed pursuant thereto on the ground of fraud. The original bill was filed on January 26, 1955. The case made...
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Petition of John W. Herrod for certiorari to the Court of Appeals 'to review and revise the judgment and decision of that Court in Herrod v. State, 86 So.2d 839. Petition dismissed, motion of petitioner. LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur....
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Petition of Burrell Jackson Ellis for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Ellis v. State, 86 So.2d 842. *696Petition dismissed. SIMPSON, GOODWYN and MERRILL, JJ., concur....
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This is a petition for mandamus to require the trial judge to set aside and vacate a certain order made by him granting a new trial. On August 18, 1955 a verdict and judgment were rendered in favor of defendant Spears in a suit by Mrs. Ara Allen. A motion for a new trial was duly made and continued from time to time until November 28, 1955 when it was heard and taken under advisement. On December ...
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Suit by the State on relation of the Hon. Thomas C. Pettus as County Solicitor of Lawrence County against R. T. Davis, alias Herman A. Davis, and one 1952 Ford tudor automobile under the provisions of Code of Alabama, 1940, Title 29, § 247 et seq., to condemn the automobile. i The Associate Finance Corporation, Inc. as mortgagee intervened. The respondent, Davis, filed an answer to the bill denyin...
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These proceedings were instituted by the state, on relation of the Solicitor of the Sixteenth Judicial Circuit, under the provisions of Title 29, § 141 et seq., Code of 1940, to abate an alleged liquor nuisance. This appeal is from a decree making permanent a temporary injunction, which was granted on the filing of the bill, and ordering a padlocking of the premises known as Livingston’s garage. T...
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On August 3, 1955, appellee, as a resident citizen and taxpayer of Colbert County, filed in the circuit court of Colbert County, in equity, a bill for declaratory judgment seeking a decree holding Act No. 174, p. 440, approved July 29, 1955, to be void, invalid and unconstitutional. (This Act has for its purpose the abolishment of the office of county commissioner of public schools in Colbert C...
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This is an original petition for a remedial writ directed to Hon. H. Neil Taylor, Circuit Judge, directing him to vacate an order made by him as such circuit judge on November 22, 1955, suspending petitioners for a period of sixty days from practicing law in the circuit courts of the 31st Judicial Circuit and such other courts over which the circuit court may have superior judicial *269power. A ru...
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The appellants, Charles R. Lucy and Marie Lucy, husband and wife, filed in the circuit court of DeKalb County, in equity, a bill of complaint against Mary Hall, Lena Hall, Ruth Hall Laws, and G. H. Noles, as sheriff of DeKalb County, seeking the following relief: (1) A decree setting aside and annulling a judgment nil elicit rendered by the circuit court of DeKalb County against Charles R. Lucy in...
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This is an appeal by cross complainants, from a decree sustaining a demurrer to the cross-bill. The original bill was filed by appellee,. Dewey O. Jones, against respondents Ross. Jones Malone, Edward Jones, Jessie Jones, and Josie Jones Thorn. As amended it alleges the complainant and respondents -are *279tenants in common of the land decribed, specifying the interest of each, and alleging it can...
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This appeal is from an interlocutory decree overruling the demurrer to a bill in equity. Appellant through her demurrer to the bill as a whole contends that there is no equity in the bill and that the trial court erred in overruling her demurrer. In our view, the allegations of the bill are sufficient to invoke the jurisdiction of a court of equity for the cancellation of a deed on the ground of m...
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This is an appeal by complainants from á decree sustaining a demurrer to a bill in equity. It seeks the enforcement of a lien under séction 37, Title 33, Code,-claimed for labor and material furnished by complainant *309for building or repairing a certain building or improvements on an acre of land, particularly described, not in a city, town or village, being by virtue of a contract with responde...
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The appellant filed in the probate court a petition for the adoption and change of name of the infant daughter of his wife (appellee’s former wife). Appellee, the natural father of the infant, although not named in the petition for adoption nor made a party thereto by the appellant, intervened and filed a motion to dismiss the petition. The probate court dismissed this petition for adoption and...
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Lankford Lawley was tried in the Circuit Court of Shelby County, Alabama, on an indictment containing two counts; one count charging rape, and the other charging carnal knowledge of, or abuse in the attempt to carnally know, Linda Sue Bass, a girl under the age of twelve years. He was found guilty and his punishment fixed at life imprisonment in the state penitentiary. The court entered a judgmen...
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Charles P. Evans was convicted of grand larceny, the property allegedly stolen being an automobile belonging to W. W. Gibson. He prosecuted an appeal to the Court of Appeals where his conviction was affirmed. The case is before us on writ of certiorari to review the decision of the Court of Appeals. The facts as determined by the Court of Appeals are as follows: “The automobile, a 1952 Chevrolet, ...
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This is an appeal by respondents from an order granting a temporary injunction after notice and hearing as authorized by sections 1054 and 1057, Title 7, Code. The bill alleges that on May 6, 1955 complainant W. E. McDonald paid $1,680 to the individual respondents as the consideration of an option to be exercised in thirty days, which they executed on that day, granting him, his heirs and...
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This is an appeal from a decree overruling demurrers to a bill in equity and to various aspects of the bill. The décree overrules the demurrer to’ the amended bill as a whole, asserting that there are’ no grounds of demurrer addressed to the bill as- a whole. It then separately overrules the demurrer addressed to certain named aspects of it. There is only one assignment of error, — that of overru...
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Mary Mantel, now deceased, executed and delivered a deed of conveyance of certain real estate to appellee, Arthur Weaver, reserving to herself the life estate. The deed contained the following clause: “The grantee shall put in a good state of repair the dwelling house located on the * * * property and shall keep the same in a good state of repair; * * * and see that the said property is re...
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This cause originated by the application for an order of condemnation filed in the Probate Court of Jefferson County, Alabama, in which Jefferson County sought to acquire the property of the appellants for the purpose of widening the Birmingham-Atlanta highway. The application was granted by the probate court, whereupon commissioners were appointed to assess the damages and compensation to whic...
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Around 5 o’clock on the afternoon of June 22, 1954, James E. King, Jr., a little boy four years of age, while crossing a public street in the city of Birmingham came in collision with a motor vehicle driven by James E. Jackson, Jr., and as a consequence “Jimmy” King received rather serious injuries. The boy and his father each brought suit against Jackson. The boy sued by his father and ne...
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This is an appeal by cross complainant from a decree sustaining a demurrer to the cross bill. That ruling of the court is the only error assigned. The suit was begun by a bill on the equity side of the Circuit Court of Coffee County by appellee against appellant, seeking to have annulled a marriage entered into between the parties on September 17, 1954 in Coffee County, Alabama. The bill allege...
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The appeal is from a decree overruling demurrer to a bill in equity which was filed in the circuit court of Mobile County, in equity, on January 6, 1955, by Perry *328 Farnell against his former wife, Geraldine Gans Haavik, and her sister, Gwendolyn Elwell. Complainant seeks a decree investing title in him to Lots 20 and 21 in Cottage Hill Gardens, Mobile County, paper title to Which is now i...
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This is an appeal under Sec. 369, Title 15, Code of Alabama 1940, taken by petitioner from a judgment on a petition for writ of habeas corpus. The judge granted. the writ, had a hearing on the return of the sheriff, and thereupon made the following order: “This the 16th day of August, 1955, this cause coming on to be heard by the Court on the Petition and Writ, the State offers Sheriff’s return...
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Plaintiff Ramey sued Bill Gross, Bill Gross d/b/a Gross Coal Company, Bill Gross d/b/a Short Creek Mining Company, under the Workmen’s Compensation Laws, Code 1940, Tit. 26, § 253 et seq., claiming compensation for disabilities alleged to have resulted from a disease of pneumonoconiosis which he claims he contracted while in the employ of defendant. The trial court rendered a judgment in favor of ...
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This is a suit by Milton Pharo against Mercury Freight Lines, Inc., a corporation, to recover damages for an assault and battery alleged to have been committed on him on August 21, 1953, by Durwood J. Sharron, an agent or employee of defendant corporation, while acting in the line of his duty and within the scope of his employment as such agent or employee. The cause was tried upon the one count o...
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This is an appeal from a decree of the equity court overruling the demurrer of Robert Clarkson Collins (appellant) to the bill of complaint filed by Catherine Hammond Collins (appellee) for a decree of divorce under § 22, Title 34, Code of 1940, as amended by Act No. 487, approved September 30, 1947, General Acts 1947, p. 336, § 22, Title 34, Code of 1940, PP. The act in pertinent part reads as fo...
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The questions sought to be presented on this appeal are not raised by assignments of error. The result is that the judgment of the lower court must be affirmed. Wetzel v. Hobbs, 249 Ala. 434, 31 So.2d 639; Purvis v. Ennis, 258 Ala. 174, 61 So.2d 451. Affirmed. LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur....
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Petition of James V. Rives, doing business as Rives Construction Company, for certiorari to the Court of Appeals, to review and revise the judgment and decision of that Court in the case of Employers Insurance Co. of Ala., Inc., v. Rives, 87 So.2d 646. After remandment. See ante, p. 310, 87 So.2d 653. Writ denied. LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. ...
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Petition of West Point Wholesale Grocery Company for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in West Point Wholesale Grocery Co. v. City of Opelika, 87 So.2d 661. Writ denied. LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur....
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Appellee filed this bill seeking, among other relief, a decree of divorce on the ground of abandonment. Appellant demurred and, his demurrer being overruled, has appealed to this court. The bill avers in part as follows: “That Complainant and Respondent were lawfully married to each other on December 22, 1912, in Macon County, Alabama; that they lived together continuously as husband and wife for ...
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This appeal comes to us on pleadings from the Circuit Court of Jefferson County, in Equity. The bill is in three aspects: Appellants (complainants below) seek (1) cancellation of a deed from appellants’ testatrix to the appellee Board of Education; (2) declaration of appellants’ interest in the real property which is the subject matter of the deed, or in the proceeds from the sale thereof; and (3)...
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This is an appeal from a judgment of nonsuit suffered by the plaintiff after the court sustained the demurrers of the defendants to the complaint. Suit arose out of an accident involving the automobile of the plaintiff and a truck owned by the defendant Compton while under lease to defendant Deaton Truck Line, Inc. The complaint as amended— Count A in simple negligence, Count B in wantonne...
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Lula Nixon brought suit against The Firestone Tire and Rubber Company, a corporation, to recover damages for personal injuries allegedly received in a motor vehicle accident at the intersection of Owen Avenue and Center Street in Bessemer, Alabama. The complaint consists of one count in which it is alleged that plaintiff, at the time of the accident, was riding as a guest passenger in an automobil...
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This is a suit in equity to settle a boundary line dispute. Sections 2 to 12, Title 47, Code. Orris Helms owned a square area in the SE corner of SW of SE of Section 21, Township 11, Range 2 West. He sold to one Dunlap approximately three-fourths of an acre in the NW corner of that square, being 118 feet north and south and 150 feet east and west. This small tract is now owned by respondent McCles...
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Myrtle Hawkins et al., the appellees,, brought a bill in equity seeking a rescission of a conveyance made by their father W. E. Pitts, now deceased, to the appellant J. L. Pitts, another child. The grounds for rescission were the unsoundness of the grantor’s mind on the date of the execution of the deed and the exercise of undue influence by grantee J. L. Pitts over the grantor W. E. Pitts. From t...
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This appeal is by Rose E. Givens as administratrix of the estate of James A. Givens, deceased, and by Charles A. Givens, Robert H. Givens and Susie Kate Tatum from a final decree in equity, wherein C. A. Moulton is complainant, and appellants together with Gerald Stanley Givens are respondents and cross complainants. Gerald Stanley Givens did not appeal nor join in the assignments of error. The ot...
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Beulah Mae Pickle filed her bill in the circuit court of Jefferson County, in equity, against Mable L. Murphy seeking specific performance of an alleged oral contract for the conveyance of certain real property described in the bill. Demurrer was sustained to the original bill but was overruled to the bill as amended. The respondent, Mable L. Murphy, thereupon filed her answer, which in pe...
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This is an original petition for mandamus to review the action of the Judge of the *449 Circuit Court of Pike County in amending nunc pro tunc a judgment against petitioner in a criminal proceeding, revoking probation and ordering petitioner’s arrest and detention. We ordered issuance of a rule nisi and the respondent-judge has made answer thereto. The case made by the pleadings is as follows...
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This is an appeal by the state from a final decree of the Circuit Court of Jefferson County, in Equity, vacating and setting aside a sales tax assessment made by the State Department of Revenue against the appellees. The sole question for our determination is whether the Alabama sales tax applies to sales by the appellees of McCulloch “power chain saws” to various consumers or users who em...
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A stipulation signed by attorneys for the parties is in part, as follows: “It is further stipulated that the decision rendered in case number 6 Div. 961 shall equally apply to 6 Div. 960, except that in the event the decrees below are not affirmed, the costs in case number 6 Div. 960 shall be taxed against the Appellant”. On authority of the decision in State of Alabama v. Joe H. Brady & Associate...
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This is an appeal by the plaintiff below from a judgment of the Circuit Court of Washington County denying recovery in a suit involving the cutting of trees on land claimed by the plaintiff. 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 ...
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This is an appeal by plaintiff from a judgment rendered on a verdict for defendant in a suit for personal injuries claimed as the result of the negligence of defendant in causing a city bus to collide with plaintiff’s automobile which had been brought to a stop for a red light at the intersection of the streets. The collision occurred in April 1954. Both vehicles were headed east on Third Avenu...
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This case involves a question of procedure of the Planning Commission of the City of Huntsville, Alabama. On July 7, 1955, Ida B. Sandlin (appellant) filed a petition for mandamus in the Circuit Court of Madison County, against Abe Goldstein, Louis Tuminello, J. E. Mitchell, Jr., W. J. Price, W. A. Blevins, Tom Jones, Jr., R. B. Searcy, W. R. Dickson and John Blue, III, as members of the Planni...
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Edd Hamm was convicted in the circuit court of Coffee' County, Enterprise Division, of having, carnal knowledge of a girj *367over twelve but under sixteen years of age. § 399, Title 14, Code 1940. The judgment of conviction was affirmed by the Court of Appeals. We issued writ of certiorari on petition filed here by Hamm which presents for our consideration the one question as to whether or not th...
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This is an appeal from a decree of the circuit court denying a motion to dissolve a temporary injunction. Upon the petition of Herman C. Hicks, appellee here, the court issued a temporary injunction enjoining Shelley T. Lewis from interfering - with Herman C. Hicks and Hicks’ tenants in and about the possession of, and the growing, cultivating and marketing of crops on, the land described in the p...
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Plaintiff McLemore sued the defendant Unions and one Michael Yolk, alleging that they prevented him from working at his job at the copper plant in Decatur, by means of unlawful picketing and committing an assault and battery on him. The jury awarded a verdict of $8,000. Defendants filed a motion for a new trial which was granted, and it is from that ruling that this appeal is taken. In the...
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This is the second appeal in this cause. Paul S. Russell brought suit against International Union, United Automobile, Aircraft and- Agricultural Implement Workers of America, C.I.O., an unincorporated organization, and other unions, later stricken by amendment, and Michael Volk, and other individuals, who were also stricken by amendment. Michael Volk is a resident of the State of Alabama and a ...
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Appellee, plaintiff below, instituted this action under the provisions of Title 7, § 123, Code of Alabama 1940, to recover damages for the wrongful death of Sara P. Butler, the wife of appellant. By stipulation of the parties, the case was submitted to the court below on the same evidence adduced in a criminal case wherein the defendant (appellant here) was tried for the murder of his estranged wi...
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Petition of Jesse Blackburn for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Blackburn v. State, 88 So.2d 199. Writ denied. LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur....
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Appellant was tried in the Circuit Court, of Russell County under an indictment charging the offense of rape. He entered a plea of not guilty and not guilty by reason of insanity; he was found guilty as charged and sentenced to death in the electric chair. This appeal is prosecuted under the automatic appeal statute. Code 1940, Title 15, Sec. 382(1) et seq. The record shows that all the legal requ...
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88 So.2d 322 (1956) Nell SMITH v. Elaine E. LAWSON. Nell SMITH v. James M. LAWSON. 6 Div. 928, 928-A. Supreme Court of Alabama. June 14, 1956. *323 Jackson, Rives, Pettus & Peterson, Birmingham, for appellant. Dan P. Barber and Harold M. Cook, Birmingham, for appellees. SIMPSON, Justice. On January 6, 1954, the automobiles driven by appellant and appellee, Mrs. Lawson, were involved in an interse...
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This is an appeal from a judgment granting plaintiffs motion for a new trial in a wrongful death action in which the jury found for the defendant (appellant). The basis of the trial judge’s decision as shown by the judgment was the claimed error in giving defendant’s written Charge Z, to wit: “The court charges the jury that if you are reasonably satisfied from the evidence that Mrs. Glenn...
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88 So.2d 331 (1956) Kenneth ADAMS v. QUEEN INSURANCE COMPANY OF AMERICA. 7 Div. 235. Supreme Court of Alabama. May 24, 1956. Rehearing Denied June 30, 1956. *333 Evans & Norred, Anniston, for appellant. Davies & Williams, Birmingham, for appellee. LAWSON, Justice. On August 28, 1952, Kenneth Adams, a resident of Anniston, was informed by police officers of that city that they had reason t...
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This is an appeal from decrees overruling demurrers of several respondents, separately, to a creditors’ bill, as amended, filed May 14, 1955, by Ethel C. Headley seeking to set aside as fraudulent several conveyances made by one Clyde W. Headley, her former husband, to various persons. The bill sought to invoke section 897, Title 7, and section 7, Title 20, Code of Alabama 1940. The complainant in...
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Petition of Fred Burke, Jr., for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Life and Casualty Co. v. Burke, 88 So.2d 338. Affirmed. SIMPSON, GOODWYN and SPANN, JJ., concur....
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Appellant was tried under an indictment charging first degree murder, was found guilty of second degree murder and sentenced to 25 years imprisonment. His motion for a new trial was overruled and he appealed. The evidence discloses that around 12:01 a. m. on the morning of January 1, 1955, the deceased, Clarence Chester and his brother James (also deceased) were present at the Embassy Club, loc...
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This is an appeal by the complainants below from a decree sustaining demurrer to •a bill for declaratory judgment. The bill seeks a decree declaring null and void a purported option for renewal of a lease on real estate because of an absence of any lawful consideration therefor. In substance, the facts alleged in the bill are as follows: On February 1, 1946, one Claribel Mason Ha...
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This is an action by plaintiff, James W. Johnson, against defendants, Thomas F. Nelson and the City of Decatur, to recover damages for injuries sustained by plaintiff in a collision between a motorcycle driven by plaintiff, and a truck driven by Nelson, the truck being owned by the City of Decatur. This appeal was perfected from a judgment awarding damages to plaintiff. The two principle questi...
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Petitioner, defendant below, seeks a writ of mandamus requiring Honorable Will O. Walton, as Associate Judge of the Fifth Judicial Circuit, to vacate an order which directed defendant to answer interrogatories 2, 3, 8 and 9 propounded to him by the plaintiff. The cause was submitted here on briefs on the petition and respondent’s answer thereto. Plaintiff, Auburn Insurance Agency, Inc., sued defen...
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This is a bill in equity with reference to .the use.of adot lying west of an area known *404as the Walnut Grove Methodist Church Cemetery in Jefferson County. The cemetery and the above mentioned area are embraced in a five acre tract conveyed on September 9, 1881 to named trustees and their successors “for the Jonesboro Circuit, Birmingham District North Alabama Conference of the Methodist E. Chu...
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This is an appeal by John Graves, as State Comptroller, from a final decree of the Circuit Court of Montgomery County, in Equity, making a declaratory judgment. The bill seeking a declaratory judgment was filed by appellee, and alleges the existence of an actual controversy between him and the state comptroller, which arose out of a claim by appellee that the comptroller should draw a warr...
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On November 8, 1955, the appellant filed in the Circuit Court of Dallas County, Equity Side, a motion to strike, set aside or vacate a jury’s verdict rendered on an issue out of chancery under date of January *37128, 1955, and the final decree entered thereon by such Circuit Court as being null and void. The grounds assigned therefor are in substance that said verdict and decree are not supported ...
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Jeremiah Reeves, Jr. (appellant), was indicted by the Grand Jury of Montgomery County for the offense of rape. He was tried before a jury upon a plea of not guilty and a plea of not guilty by reason of insanity. The trial resulted in a conviction. The case was appealed to this court where it was affirmed. Reeves v. State, 260 Ala. 66, 68 So.2d 14. On certiorari to the Supreme Court of the United ...
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This is an appeal by the complainant from a final decree of the circuit court of Marshall County, in equity, denying the relief sought and dismissing the bill. In essence, the bill is one to have the parties declared partners in a venture involving the use and hire of a truck, and an accounting by respondent, it being alleged that the parties “entered into an agreement to form a partnership betwee...
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Appellant, complainant below, filed a bill, in the circuit court of Chambers County,' in equity, to enjoin the Pleasant Hill Baptist Church and its board of deacons from removing a church building from land al-' leged to be the property of complainant. The bill alleges that in 1916 one Ada L. Brown conveyed to the church the lot on which the church building is located; that “said conveyance contai...
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Petition of Juanita B. Whitten for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Reserve Life Ins. Co. v. Whitten, 88 So.2d 573. Writ denied. LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur....
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This is a petition for writ of mandamus to be directed to the respondent, Honorable Will O. Walton, Associate Judge of the Fifth Judicial Circuit. Petitioner contends that the respondent should be required to vacate an order which he issued in the case of G. H. Wright, plaintiff, v. City Sales Company, a corporation, defendant, requiring petitioner, defendant below, to answer more .fully certain n...
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On the 21st day of June, 1954, the Circuit Court of the Tenth Judicial Circuit of Alabama, in Equity, upon complaint of the wife, rendered a decree dissolving the bonds of matrimony between Ethel Gray and William F. Gray. It was provided in said decree that the respondent, William F. Gray* .pay to the complainant, Ethel Gray, the sum of $50 per month as alimony, the payments to be made in two inst...
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The opinion of the Court heretofore announced is withdrawn and the following opinion is substituted in lieu thereof. This is an appeal from the judgment by the Circuit Court of Walker County, Alabama, in a quo warranto proceeding brought by the appellant Smith. The proceeding involves the right of the contending parties to membership on the Board of Revenue of Walker County for District No. 1. At ...
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This is an appeal from a final decree of the Circuit Court of Covington County, in Equity, denying relief to complainants and dismissing their bill. The appellants, complainants below, are all the heirs except one of J. E. Hughes, deceased. The appellees, respondents below, are The Baptist Foundation of Alabama and Mrs. Julia Price, a daughter of J. E. Hughes, deceased. The bill of complaint sough...
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The appellant was convicted of murder in the first degree under an indictment charging him that he killed McLendon Tolbert by setting him on fire, thus causing his death. The jury returned a verdict of guilty and fixed his punishment at death. From the sentence imposed by the court the case comes here under the Automatic Appeal Statute, Tit. 15, § 382(1) et seq., cum. pocket parts, p. 122 et seq. ...
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This is an appeal from a decree of the Circuit Court in Equity of Montgomery County affirming an order of the Alabama Public Service Commission. The appellee transportation companies have filed a motion to dismiss the appeal grounded upon two theories: (1) the belated filing of the transcript; and (2) the belated filing of appellants’ brief. The first ground is well taken, so we need not consider ...
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The bill of complaint in this case was filed in the name of the State of Alabama by the Attorney General under the provisions of Act No. 351, General Acts of Alabama, 1947, page 231 (presently in the pocket part as Title 55, § 170(19), Code of Alabama, 1940), against the appellees, J. W. Stacks and United States Fidelity and Guaranty Company of Baltimore, Maryland. The State sought to recover publ...
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Submitted on motion and merit. The appellee’s motion to dismiss the appeal is meritorious, so the case will not be considered on it’s merit. The appeal was taken July 19, 1955, and the transcript was not filed in this court until December 6, 1955, no extension of time for filing the same having been granted. Under Supreme Court Rules, Rule 37, Code 1940, Tit. 7 Appendix, the transcript should have...
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This appeal is taken from a decree of the Circuit Court of Jefferson County, in Equity, sustaining the demurrer of Lela Small, individually and as executrix of the will of Will Small, deceased, to the bill of complaint, as last amended, which sought a sale for division of a lot in Jefferson County. *486We quote from appellants’ brief: “The bill of complaint as last amended, alleges, among other th...
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Supreme Court of Alabama Judicial Building Montgomery, Alabama Gentlemen : Pursuant to the Authority vested in me by Section 34, Title 13, Code of 1940, I respectfully request your opinion in connection with Act 492 of the 1955 Session of the Alabama Legislature on the following questions: (1) Will the making and collection of assessments by a municipality, in accordance with the provisions of the...
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This is an appeal by defendant from a judgment against her in favor of plaintiff for personal injuries sustained by him in a collision between trucks driven by each separately. The trucks were traveling north on Highway 31 which has four lanes, two for traffic in both directions. The four lanes are divided by a concrete “island” about four feet wide with sloping sides and is six inches higher tha...
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This appeal is from a judgment of conviction of murder in the second degree with punishment fixed at thirty years and one day imprisonment in the state penitentiary. The appeal is on the record proper without a transcript of the testimony. When so, the only question presented for review is the regularity of the proceedings in the circuit court. The record appears to be regular and presents nothing...
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The appellant, Dorothy Salter, was indicted by a grand jury of Covington County for the offense of murder in the first degree. On her trial in the circuit court of that county on the indictment she was convicted of murder in the second degree and her punishment fixed at forty years imprisonment in the penitentiary of this state. There is no official report of the evidence adduced on the trial. The...
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Will Duncan, a resident of Dallas County, died intestate on December 22, 1949, leaving, a considerable amount of real property situate in the city of Selma. On January 8, 1951, the circuit court of Dallas County, in equity, to which the administration of the estate had been removed, entered a decree assigning to the widow, Rebecca Duncan, as dower, an estate for life in one-half in value of the re...
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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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Plaintiff recovered a judgment against the defendant in the amount of $65,000 as reduced by the order of the trial court on motion of the defendant for a new trial and acceptance of a remittitur by plaintiff. The defendant brings this appeal. This *475case, involving a railroad crossing accident, has been tried three times. The judgment appealed from is the third one rendered against the defendant...
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This suit was filed by St. Paul Mercury Indemnity Company for its benefit and for the benefit of Mrs. June Fulton Robinson and her minor son, dependents of Robert Harold Robinson, Sr., deceased, against Foster & Creighton Company and others, under the provisions of the Workmen’s Compensation Act, Title 26, § 312, Code of Alabama 1940, as amended. The complaint was in one count and alleged that Rob...
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Appellees filed a bill in equity against five respondents, all of whom were personally served. Decrees pro confesso were duly taken against three of them upon their failure to make an appearance. The other two respondents, Lowry and Christian, filed demurrers within the time allowed, but made no further appearance. The final decree recites in part that: “This Cause coming on to be heard was submit...
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Appeal from a judgment of the Circuit Court of Shelby County fixing appellees’ damages and compensation in a condemnation proceeding at $3,500. On March 5, 1954, Shelby County filed a petition in the Probate Court of that county to condemn lands of appellees for highway purposes. From the final order of condemnation in the Probate Court, the appellees appealed to Circuit Court and demanded...
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This is a case of a boundary line dispute between coterminous landowners. The issues appear to be twofold, viz.: 1. The beginning point of appellee’s western boundary was described in the deed to be 919.5 feet west of the S.E. corner of N.W. 54 of N.W. 54 Section 18, Township 17, Range 5W.; the court fixed the boundary at a point 1,027.3 feet west of said S.E. corner. This controversy affects the ...
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This is an action of ejectment by appellant against appellee for the recovery of two tracts of land, one of which is approximately 60 acres and is referred to in the complaint as Parcel A, and the other tract of approximately 20 acres is referred to as Parcel B. The trial was had with a jury and a verdict returned for defendant (appellee) with judgment rendered accordingly. The two tracts ...
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This is a petition for writ of certiorari to the Court of Appeals. • The petition prays that this court proceed to review and correct the errors complained of and to reverse the judgment of the Court of Appeals. But no errors are pointed out in the petition. The petition recites the following as a basis for the application for certiorari: “The points of law which Petitioners claimed should be...
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Petition of Luther (Loyd) Hill for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Hill v. State, 88 So.2d 880. Writ denied. -LIVINGSTON, C. J., and. SIMPSON and MERRILL, JJ., concur. ...
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The appellee, Western Railway of Alabama, filed a petition with the appellant, Alabama Public Service Commission, for authority to discontinue Milstead, Alabama, as an agency station and to make it a prepay station for carload and less-than-carload freight. After the hearing of the petition, the Public Service Commission found from the evidence that the present and future public convenience and ne...
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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 an interlocutory decree overruling appellant’s demurrer to appellee’s petition filed in the circuit court in equity to sell certain personal property of his intestate. The assignments of error challenging the ruling on the demurrer are not argued and are, therefore, waived. 2A Ala.Dig., Appeal and Error, ...
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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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On December 17, 1952, Ellen Dorrough and Clara Bell Kimbrough filed their bill in the circuit court of Macon County, in equity, seeking sale of land for division of proceeds among tenants in common. The respondents to the bill, twelve in number, together with the complainants, are alleged to be the heirs at law of Mary Louise McKee, who died intestate on June 19, 1952. One of the respondents, S...
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This case is before us for consideration under revised Supreme Court Rule 17, Code 1940, Tit. 7, Appendix. On June 13, 1956, appellees filed their statement in writing under the rule to the effect that in the opinion of appellees this appeal was brought in this court merely for delay. No denial having been filed by appellants and the record having been examined and considered, we are of the opinio...
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This case comes to this Court on a writ of certiorari to review a decree of the Circuit Court of Madison County, in Equity, which adjudged the petitioner, Howard Seymore, in contempt for violating the terms of a temporary restraining order which the Chief Justice of the Supreme Court of Alabama had ordered the Register of the Circuit Court of Madison County to issue. Complainant in a case styled L...
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This is a petition for writ of certiorari to review a decree of the Circuit Court of Madison County, in Equity, adjudging the petitioners in contempt for the violation of a temporary restraining order which issued during a labor dispute between petitioner, Local Number 230, and respondent, Lincoln Mills of Alabama. The petitioners were tried under a rule to show cause which was issued pursuant to ...
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This petition for writ of certiorari seeks review of a decree of the Circuit Court of Madison County, in Equity, which adjudged the petitioners in contempt for violating the terms of a temporary restraining order. Petitioners were tried under a rule to show cause which issued after complainants filed a verified petition for a rule to show cause, charging: “That the respondents Textile Workers Unio...
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This is an appeal from a judgment overruling the respondents’ demurrer to a bill in equity which was filed for the purpose of enjoining the establishment of a senior high school at Appalachian, in Blount County, Alabama. The complainants are the Blount County Superintendent of Education and 38 individuals who are resident taxpayers and patrons of the Blount County school system. The respondents a...
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In this case Carrie Morgan brought her suit against Mrs. Mazie C. Brooks (petitioner here) for damages claimed as a result of an automobile accident, wherein plaintiff alleges that she was riding as a passenger in an automobile on a public highway in Chambers County, Alabama, on towit, June 13, 1952, and that defendant negligently operated an automobile at that time and place and collided with ...
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The appeal is on the record proper without a transcript of the testimony. When so, the only question presented for review is the regularity of the proceedings in the circuit court. Harper v. State, Ala., 88 So.2d 788. But appellee has moved to dismiss the appeal for appellant’s failure to comply with Supreme Court Rule 37, Revised Rules effective June 1, 1955 and amended February 17, 1956. The ...
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This is an appeal by the State from a final decree of the Circuit Court of Lauder-dale County, in Equity, vacating and setting aside a sales tax assessment made by the State Department of Revenue against the appellees, to whom we will refer sometimes hereafter as the taxpayer. The question for decision here is whether the trial court was correct in holding that under the facts presented th...
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This is an appeal from a judgment of the Circuit Court of Shelby County assessing damages and compensation at $4,500 in a condemnation proceeding. Shelby County, a body corporate, filed an application in the Probate Court of Shelby County seeking to acquire the property of appellee for the purpose of constructing, maintaining, improving and relocating portions of Highway 31 in Shelby County, Alaba...
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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 Jackson v. State, Ala.App., 89 So.2d 108. Writ denied. LIVINGSTON, C. J., and SIMPSON and SPANN, JJ., concur....
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Appellant filed in the Circuit Court of Jackson County, equity side, a bill of com-' plaint praying that the court declare the will of J. P. Harris, deceased, which had been previously admitted to probate in the Probate Court of Jackson County, to be invalid, and that the decree of the probate court be set aside. Appellant was one of the next of kin of deceased and did not contest the will ■ in th...
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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. Reynolds v. Henson, Ala., 87 So.2d 856 1 ; McPherson v. Stallworth, 262 Ala. 367, 78 So.2d 924; Garrard v. State ex rel. ...
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This is an appeal from a judgment of the Houston Circuit Court, in Equity, sustaining respondent’s demurrer to complainant’s substitute bill of complaint. The purpose of the bill was to have a deed declared to be a mortgage. The bill further prayed for an accounting and that complainant be allowed to pay the amount of the indebtedness still due. In its judgment on the demurrer, the circuit court h...
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The appellant was convicted of robbery and given a sentence of twenty-five years in the penitentiary, from which he has brought this appeal. The case is submitted on appellee’s motion to strike the transcript of the record and on the merits. It is unnecessary to consider the motion to strike inasmuch as the appeal is on the record proper and no error is made to appear. The transcript is in all res...
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The question on this appeal is whether appellant, who will be referred to as the taxpayer, is entitled to a deduction from his taxable income for 1951 for State income tax purposes, of an item designated on his return as “Federal Income Taxes on Gimon Estates — a dissolved corporation, $17,450.49”, and an item of $3819.10 designated as “Interest Paid — Collector *682of Internal Revenue” (computed ...
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This is an appeal by complainant from a final decree in equity denying him a permanent injunction to prohibit respondent from cutting timber on a certain forty acres of land in Covington County. Complainant purchased the land from Hinton Bogan who purchased it from R. I. Hart, and respondent claimed the right to cut the timber under a prior deed from Hart. The timber deed was on record when the...
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Bill to dissolve a partnership, for an accounting of partnership’s affairs, division of partnership assets, for the appointment of a receiver to take charge of the affairs of the partnership and to enjoin interference with the receiver in the performance of his duties, filed by the appellee against the appellants. The demurrer of the respondents being overruled this appeal results. The bill avers ...
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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 a detinue suit filed in the Circuit Court of Jefferson County, Bessemer Division, on December 26, 1954, by Textile Mills, Inc., against S. J. Colpack, to recover a 1954 Chevrolet station wagon and for damages for its detention. The sheriff took the station wagon, referred to hereafter as the automobile, into his possession on December 26, 1954, under writ of seizure issued by the clerk bas...
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This is an appeal by Wesley Adams (petitioner), charged with murder in the first degree, from denial of bail by Circuit Judge A. B. Cunningham of the Etowah County Circuit Court. On June 4, 1956, petitioner was charged by affidavit issuing from the County Court of Etowah' County with murder in the first degree. Apparently without hearing, the judge of the county court denied bail. Petition for hab...
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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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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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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 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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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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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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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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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 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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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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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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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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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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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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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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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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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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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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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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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 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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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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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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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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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 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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Petition dismissed. All the Justices concur....
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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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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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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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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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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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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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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 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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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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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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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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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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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 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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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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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 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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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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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 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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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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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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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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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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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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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 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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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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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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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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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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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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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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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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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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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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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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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 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 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 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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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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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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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...
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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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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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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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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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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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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 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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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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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 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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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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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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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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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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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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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 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 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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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 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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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 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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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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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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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 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 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 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 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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Appeal dismissed by agreement....
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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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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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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...
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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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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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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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This is an appeal from a decree, in equity, overruling a demurrer to a bill to exercise complainant’s statutory right of redemption of real estate. The mortgage, covering about 647 acres of land situated in Dale County, was executed on April 28, 1952. On February 1, 1954, the mortgagee foreclosed the mortgage and sold the land at public outcry under the powers and terms of the mortgage. The appell...
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94 So.2d 209 (1956) Rodgers PARKER v. STATE of Alabama. 6 Div. 890. Supreme Court of Alabama. November 1, 1956. Rehearing Denied April 4, 1957. *210 Skidmore & Davidson, Tuscaloosa, for appellant. John Patterson, Atty. Gen., Robt. Straub and Wm. C. Younger, Asst. Attys. Gen., for the State. STAKELY, Justice. Rodgers Parker (appellant) was indicted for the murder of George Wynn, deceased. Tria...
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Petition of Olan Rushing for certiorari to the Court of Appeals to review and revise the judgment and 'decision of that Court in Rushing v. State, 94 So.2d 770. Writ denied. LAWSON, STAKELY and MERRILL, JJ., concur....
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This is an appeal from a decree of the Circuit Court in Equity, Jefferson County, Alabama, in a cause commenced by a bill seeking the division of certain property which is the subject matter of the will of Reuben A. Lewis, Sr., who died in Jefferson County in May, 1935. The cause was submitted on stipulated facts. In order to make the division prayed for, it was necessary to construe certa...
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Action for damages by N. A. Palmer against the defendant Union and one Michael Volk. The complaint consists of two counts. Count 1 claims damages of the defendants for unlawfully and maliciously preventing plaintiff from engaging in his employment. Count 2 is similar to Count 1, except that it alleges a conspiracy between the defendants in connection with the same matter alleged in Count 1. Bef...
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*179To the House of Representatives State Capitol Montgomery, Alabama Dear Sirs: We acknowledge receipt of your communication of the 6th day of February, 1956, in which we are asked to give our opinion on certain constitutional questions with reference to H.B. 160, as amended. In reply we answer as follows: To the first question our answer is No. Alabama Public Schools Corporation, created under t...
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Appeal dismissed. LIVINGSTON, C. J., and LAWSON, STAKELY and MAYFIELD, JJ., concur....
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Writ denied....
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Appeal dismissed. Supreme Court Rule 12. LIVINGSTON, C. J., and LAWSON,. STAKELY and MAYFIELD, JJ., concur....
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Appeal dismissed. Rule 12....
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Writ denied. LIVINGSTON, C. J., and LAWSON, STAKELY, and MAYFIELD, JJ., concur....
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Appeal dismissed. Supreme Court Rules 12, 37. LIVINGSTON, C. J., and LAWSON, STAKELY and MAYFIELD, JJ., concur....
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Petition dismissed....
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Appeal dismissed. Rule 12....
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PER CURIAM. Appeal dismissed. Rule 12....
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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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Writ denied. LIVINGSTON, C. J., and GOODWYN, MERRILL and MAYFIELD, 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 Wallis v. State, 84 So.2d 788. Writ denied. LIVINGSTON, C. J., and LAWSON and MAYFIELD, JJ., concur....
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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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88 So.2d 857 (1956) Frances J. DAVIS et al. v. Martha Jane REID. 3 Div. 712. Supreme Court of Alabama. June 30, 1956. Edwin C. Page, Jr., Evergreen, and Wm. Hamilton, Greenville, for appellants. Brooks & Garrett, Brewton, for appellee. PER CURIAM. This is an appeal from a decree of the Probate Court of Conecuh County setting apart a homestead and vesting fee simple title in the appellee. J. A...
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