Volume 118 — Alabama Reports

Tried before the Hon. John R. Tyson. The facts of the case are sufficiently stated in the opinion. Held: even where the term has been protected by the Constitution, that to fall within its influence the term must be the term of a judge whose court is in existence, and that when the court is abolished the term falls with it, because the Constitution does not contemplate a term of office, when there is no office. — Perl-ins v. Corbin, 45…

Tried before t'he Hon. J. J. Mayfield. The appellant, Alvin Stoneking, was tried under an indictment for murder, was convicted of murder in the second degree, and sentenced to the penitentiary for ten year’s. The defendant made a motion to strike the indictmnt from the file, and a motion to quash the indictment, and also filed pleas in abatement to the indictment. There were many grounds to the respective motions; the said grounds and the pleas in abatement being identical.

Tried before the I-Ion. J. A. Bilbro. The appellant, Joel T. Dennis, urns indicted and tried for murder, was convicted of manslaughter in the first degree and sentenced to the penitentiary for a term of seven years. The evidence for the State showed that the defendant killed William D. Cunningham, in Jackson county, before the finding of the indictment.

Tried before the Hon. J. W. Foster. The appellant in this case was indicted, tried and convicted of murder in the first degree and sentenced to be hanged. The facts pertaining to the rulings of the court upon the evidence are sufficiently set forth in the opinion.

Tried before the Hon. Samuel E. Greene. The appellant, James Suther, was indicted, tried and convicted for the seduction of Jeannette Frail.

Tried before the Hon. Jopin Moore. The appellant was indicted, tried and convicted of arson.

Tried before the Hon. J. W. Mabry. The appellant, Jonas Bates, was indicted, and tried for the murder of one Henry Randall, was convicted of murder in the second degree, and sentenced to the penitentiary for 99 years.

Tried before the Hon. Thomas R. Roulhac. The appellant was indicted, tried and convicted for conveying into a county jail a knife and a piece of steel, for the purpose of aiding a prisoner confined in said jail to escape. - ' On the trial of the cause, the State introduced as a witness J. B. Grisham, the sheriff of Colbert county, who testified to his discovering the prisoner, to whom the knife and the piece of steel had been delivered, about to escape; that he demanded from…

Tried before tbe Hon. Thomas R. Roulhao. Tbe appellant, Otis Brown, was indicted, tried and convicted for burglary; tbe bouse burglarized being alleged in the indictment and shown by the evidence to belong to the Sheffield Coal, Iron & Steel Company.

Tried before the Hon. D. R. McMillan. The appellant was indicted, tried and convicted for an assault and battery with a gun.

Tried before the Hon. J. A. Bilbbo. The defendant, George Smith, was indicted, tried and convicted for the seduction of Beulah Bumsay. The rulings of the court upon the evidence, to which exceptions were reserved, áre sufficiently shown in the opinion.

Tried before the Hon. James W. Lapsley. The appellant was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment that Sam McClellan, alias Samuel McClellan, sold, gave away, or . otherwise disposed of spirituous, vinous, or malt liquors without a license and contrary to law, against the peace and dignity of the State of Alabama.” The defendant demurred to this indictment upon the following grounds:…

Tried before tlie Hon. John W. Bishop. Tlie appellant, D. B. Curtis, was indicted, tried and convicted for forgery; the instrument forged being a mortgage purporting to be executed by one Daniel Cross to the defendant, D. B. Curtis, and attested by Charles Cross.

Tried before the Hon. N. H. Thompson. The appellant was prosecuted, tried and convicted for carrying a pistol concealed about his person. The only question presented for review on the present appeal was the refusal of the court to give the charges requested by the defendant. The facts pertaining to these charges are sufficiently stated in the opinion.

Tried before the Hon. J. M. Carmichael. The appellant, John P. Murphy, was indicted and tried for forgery, and was convicted of forgery in the third degree. The instrument alleged to be forged was a decree of' the Chancery Court of Russell county, granting a divorce to M. V. Askew in the case of M. Y. Askew v. Thomas Askew. The facts of the case are sufficiently stated in the opinion.

Tried before tbe Hon. Samuel E. Greene. Tbe prosecution in tbis case was instituted by an affidavit being made out before a justice of tbe peace alleging that tbe Phoenix Carpet Company bad violated section 3892 of tbe Code of 1886, by engaging in or carrying on its business as a corporation after tbe 27 th of March, 1897, without having taken out a license as required by sub-division 15 of section 35 of tbe act of tbe General Assembly of Alabama, approved February 18, 1897,…

Tried before the Hon. J. M. Carmichael. This was a statutory quo loarranto proceeding, instituted by the State of Alabama on the relation of Samuel L. Moore, against the appellant, J. M. Nolen.

Tried before the Hon. John B. Tyson. This was a proceeding in the nature of qioo warranto, and was commenced by the filing of an information by the State of Alabama on the relation of W. T. Robertson against the appellee, Thomas D. McGough.

The facts of the case are sufficiently stated in the opinion. cited 2 .Brick. Dig., 240, §4; 3 Brick.- Dig. 625, §2; Ex parte Printup, 87 Ala. 148; Cooh v. Mancius, 5' Johns.-Oh. 89;' Whifbeók v. Edgar, 2 Barb, Oh. 10G. ' - - cited 3- Brick: Dig, 625, §1 § 2, 6; Ex parte Printup¡ 87 -Ala. 148; Ex parte Burtis, 103 U..S. 238.

This was an application for mandamus originally filed in this court. The facts of the case are sufficiently stated in the opinion. cited Dixon v. Field, 10 Ark. 243; People v. Bacon, 18 Mich. 247; *State ex rel. v. Nabor, 7 Ala. 459; Ex parte Lowe, 20 Ala. 330; Withers v. State, 36 Ala. 252; Gastello v. Court, 28 Mo. 259; Ex parte Lawrence, 34 Ala. 446; Ex parte Barnes, 84 Ala. 540; Reynolds v. Crook, 95 Ala. 570,- Ex parte Toioer Manfg.

This was an application originally filed in this court by D. I). Howell, asking that a writ of mandamus be issued to the judge of the circuit court of Coffee county, directing and commanding 'him to restore to the docket of said court the cause of I).

This was an original petition for mandamus filed in this court. The facts of the case are sufficiently stated in the opinion. 1. There is no statute in Alabama providing for the production of papers and documents in a court of chancery.

Tried before the Hon. J. J. Banks. Samuel Heineman and Marcus Heineman, as partners under the firm name of Heineman Brothers, brought this action against Joseph S. Smith, late sheriff of Jefferson county, and the sureties on his official bond as such sheriff. The suit was commenced on March 31, 1892. The complaint was for a breach of the official bond of tlie sheriff, and contained two counts.

Heard before the Hon. William B. Bridges. This was a proceeding, instituted in tlie probate court of Jackson county, by Mrs. Sallie Garland, to have set apart to her a homestead in the estate of her deceased husband, John 0. Garland. The facts in this case are in substance as follows: John C. Garland died intestate in Jackson county, in August, 1896, leaving Sallie Garland, the appellant, surviving him as his widow.

Tried before the Hon. John Moore. This action was brought by the appellees against the appellant. The complaint as originally filed contained seven counts, which were as follows: “First. The plaintiff claims of the defendant the sum of eight thousand, nine hundred and twenty-five ($8,925) dollars, due by promissory note made by him on, to-wit, the 31st day of January, 1887, and payable twelve months after the date of same, with interest thereon. “Second.

Tried before the Hon. John W. Bishop. This suit was brought by the appellant, the First National Bank of Talladega, against the appellees, John W. Chaffin and Mrs. M. E. Chaffin; and counted upon three notes under seal, two for one hundred dollars each, and one for fifty dollars. These notes were made by the defendants and were payable to Warren F. Smith, by whom the plaintiff alleges they had been transferred to it.

Tried before the Hon. John B. Tally. This was an action of ejectment, brought by the appellees against the appellant. The facts of the case are sufficiently set forth in the opinion. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the general affirmative charge in their favor. The defendant excepted to the giving of this charge, and also excepted to the court’s refusal to give the general affirmative charge requested by him.

Heard, before the Hon. John A. Foster. Appeals from the Circuit Court of Montgomery. Tried before the Hon. John H. Tyson. ■ The first of these cases was a bill filed by the appellants against the appellees; and the two other cases were actions of ejectment brought by the complainants in said bills against the defendants in the respective suits.

Tried before the Hon. James J. Banks. This action was brought by the appellee, E. Feibelman, against the Manchester Fire Assurance Company, and was commenced on May 6, 1892. The complaint as originally filed contained one count, and was as follows: “1.

Tried before the I-Ion. J. A. Bilbro. This action was begun on the 4th day of March, 1895, by J. P. Morrow, Sr., against C. C. Campbell and the sureties on his official bond, as sheriff of Marshall county.

Tried before the Hon. William H. Simpson. The bill in this case was filed by the appellant, Ada S. Jones, against William Blount Matkin, Elizabeth G. Matkin, Percy D. Matkin and J. H. McAnnelly & C. McAnnelly. The facts as shown by the averments of the bill were as follows: Mrs. Margaret A. Matldn, who was the owner of the land in question, on the 29th of February, 1888, for the purpose of securing a note that day given by her to Isham G-.

Heard before the: Hon. Thomas M. Arrington. The facts of the case pertaining to the rulings of the .chancery court, which are reviewed on the present appeal, and Avhich are necessary to an understanding of the decision of this court, are sufficiently stated in the opinion. The bill is Avithout equity.

Heard, before the Hon. J. R, Dowdell. The bill .in this case was filed by the appellant against the appellee. The facts of the case are sufficiently stated in the opinion. The defendant moved to dissolved, and the bill dismissed for the want of equity, bill for the want of equity. On the submission of the cause on this motion, the court ’ granted the motion, and ordered the injunction dissolved and the bill dismissed for the want of equity.

Tried before the Hon. John R. Tyson. This action was brought by the appellee, the Dexter Steam Fire Engine Company, No. 1, of the city of Montgomery, a corporation, against J. C. Booth and A. R. Booth; and counted upon a promissory note or bond, which was in words and figures as follows: ■ “Montgomery, Ala., January, 1894. On the 1st day of January, 1897, we promise to pay to the order of Dexter Fire Co. No. 1, the sum of six 'hundred and thirty-three and 35-100 dollars.

Tried before the Hon. D. W. Speake. Special Judge. This was an action brought by the appellee, Thomas B. Grigsby, against the appellant, Thomas J. Turrentine, and one John H. Davis; and counted upon a promissory note for'$2,500. The complaint, as originally filed, averred that there was a credit of $1,500 on said note. The plaintiff subsequently amended his complaint by adding another count thereto, in which he counted upon a note for $500.

Tried before the Hon. E. W. Pettits, Special Judge. This was an action brought by the appellee, J. C. Chestnut, against the appellant, M. M. Tyson, to recover damages for t'he breach of a contract of lease, entered into by the plaintiff with the defendant, by which lease M. M. Tyson, as guardian of S. L. Tyson, rented to J. C. Chestnut a tract of land situated in Lowndes' county, Alabama, known as the Ewing place, for four. years, to-wit, 1890, 1891, 1892, 1893; said…

Tried before the Hon. John B. Tyson. The appellant, the Eufaula Grocery Company, a corporation, brought the present suit against the apellee, the Missouri National Bank, to recover for money had and received. As ancillary to the suit, the plaintiff; sued out a writ of garnishment, which was served upon the Eufauia National Bank. The cause was tried on the plea of the general issue.

Heard before the Hon. William I-I. Tayloe. The bill in this case was filed by the appellant, Jane A. Sanders, against the appellees, for the purpose of recovering dower in lands of which the complainant’s husband was seized during coverture, and which were sold at sheriff’s sale under execution against the complainant’s husband, and passed by mesne conveyance to the defendant. A demurrer interposed to the bill was. overruled.

Tried before the Hon. H. A. Sharpe. This action was brought by the appellants against the appellee, to recover damages for the alleged breach of a contract. The complaint, as originally filed, contained four counts. In the first count, the terms of the contract are set out in haec verba, and are sufficiently stated in the opinion.

Tried before the Hon. T. J. Burton. This was a statutory trial of the right of property, which arose in the following manner: Amos Yaughan brought a suit on a stated account against Ed. Greenwood before a justice of the peace. In connection with said suit, an ancillary writ of garnishment was issued by the justice of the peace and was served upon the Southern Bailway Company.

Tried before tbe Hou. J. M. Carmichael. This vras an action by the appellant, the Farley National Bank, against J. M. Henderson, the appellee, and counted upon a bill of exchange, Avhich had been drawn by one J. C. McKenzie upon J. M. Henderson, and made payable to the order of the Farley National Bank, and Avhich was accepted by J. M. Henderson. ■ The defendant filed eight pleas.

Heard before the Hou. William H. Tayloe. The bill in this case ivas filed by Annie E. Jones against the appellant, C. P. Beddow. Pending the suit, the complainant died, and the cause was revived in the name of F. Gr. Sheppard, as administrator of his estate. The purpose of the bill and the facts of the cause are sufficiently stated in the opinion.

Tried before the Hon. H. A. Sharpe. This was an action brought by the appellee, Jim Nash, against the appellant, the Louisville & Nashville Railroad Company, to recover an amount alleged to be due the plaintiff from the defendant for labor done and services performed for the defendant.

Heard before the Hon. William H. Simpson. The bill in this case was filed by W. W. Wadsworth, as a creditors’ bill against the appellant Lorenzo Corey and the Decatur Building Supply Company; and sought to have set aside and annulled as fraudulent and void certain transfers of its property by the Decatur Building Supply Company to the defendant Lorenzo Corey, and to compel the said Corey to account for the. value of the assets of the Decatur Building Supply Company so…

Heard before the Hon. Jere N. Williams. The bill in this case was filed by the appellees against Steiner Land & Lumber Company, a private corporation, J. M. Steiner, Ida A. Steiner, S. J. Steiner, Lottie Steiner, J. T. Steiner, Anna Steiner, K. E. Steiner, May Steiner, Bernard Steiner, J. H. Steiner, M. C. McG-ehee, Estelle Otts and John J. Flowers. The substantial facts averred in the bill are sufficiently stated in the opinion.

Heard before the .Hon. J. B. Dowdell. The original bill in this case was filed on July 26, 1895, by W. N. Cowan against the appellee, the Southern Railway Company. The facts averred in the original bill shows that the complainant, during his life time, was seized and possessed of 300 acres of land in Etowah county, upon which he resided and made his home.

Tried before the Hon. William S. Anderson. The appellee sued the appellant for $1,400. The complaint contained the common counts and two special’ • counts. A demurrer was sustained to the third count, which was one of the special counts, and no amendment was made.

Appeal-'from tbe Circuit Court of Montgomery. Tried before- tbe Hon. John R. Tyson.

Tried .before the Hon. John R. Tyson. The facts of the case are sufficiently stated in the opinion. The testimony of the defendant as to how he became the owner of the property alleged to have been converted, was incompetent and inadmissible. — Code of 1896, §1794; Wood v. Brewer, 73 Ala. 262; Miller v. Gannon, 84 Ala. 63. It is no answer to the objection that the incompetent evidence was brought out by the plaintiff on his cross-examination.

Tried before the Hon. J. J. Banks. This cause originated in an action brought by the appellee, W. D. Wood against the appellant, Alexander McDonald, to contest the election of the said McDonald to the office of mayor of Carbon Hill; Alabama, and to have one R. G. Cary, the opposing candidate for mayor, declared elected as mayor.

Heard before the Hon. Jere N. Williams. The appellant, James Douglass, a resident citizen and tax-payer of Montgomery, Alabama, filed the present bill to have declared null… Held: and they can not, except under valid legislative authority, dispose of the public squares, streets or commons.” lb., §575. The rule is abundantly supported in Webb v. Demopolis, 95 Ala. 116; Morris v. Imp. Co., 38 N. J. Eq. 304, and authorities; Commonwealth v. Rush, 14 Pa. St. 186; 15 Amer. & Eng.

Heard before the Hon. Thomas Cobbs. This is a suit brought by the appellant, Mary Gf.

Tried before the Hon. William S. Anderson. This urns a statutory action of ejectment, brought by the appellee, Jetta Simon, against the appellant, John N. Craft, to recover a certain lot of land in the city of Mobile.

* Tried before the Hon. J. W. Postee. This -was a statutory trial of the right to property, which was levied upon under an execution issued on a judgment in favor of the appellant, R. Tillis, against one J. P. Dean. Upon the levy of the execution upon two ponies and a cow, as the property of said J. P. Dean, the appellee, M. A. Dean, interposed a claim thereto by making affidavit and executing bond as required by statute.

<p>Appeal from the Circuit Court of Perry.</p> <p>Tried before the Hon. John Moore.</p>

<p>Appeal from Circuit Court of Dallas.</p> <p>Tried before the Hon. John Moore.</p>

<p>Appeal from Montgomery City Court.</p> <p>Tried before the Hon. A. D. Sayre.</p>

<p>Appeal from Cleburne County Court.</p> <p>Tried before tlie 1-Ion. T. A. Johnson, Special Judge.</p>

<p>Appeal from Walker Circuit Court.</p> <p>Tried before the Hon. James J. Banks.</p>

<p>Appeal from Circuit Court of Perry.</p> <p>Tried before the Hon. John Moore.</p>

<p>Appeal from Mobile City Court.</p> <p>Tried before the Hon. O. J. Semmes.</p>

<p>Appeal from Morgan Circuit Court.</p> <p>Tried before tbe Hon. James J. Banks.</p>

<p>Appeal from Morgan Circuit Court.</p> <p>Tried before tbe Hon. James J. Banks.</p>

<p>Appeal from Morgan Circuit Court.</p> <p>Tried before the Hon. W. W. Callahan, Special Judge. •</p>

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before the Hon. Thomas Cobbs.</p>

<p>Appeal from Pike Criminal Court.</p> <p>Tried before the Hon. E. B. Wilkerson.</p>

<p>Appeal from Montgomery City Court.</p> <p>Tried before the Hon. A. D. Sayre.</p>

<p>Appeal from Mobile Chancery Court.</p> <p>Heard before the Hon. William H. Tayloe.</p>

<p>Appeal from Jackson Circuit Court.</p> <p>Tried before the Hon. J. A. Bilbro.</p>

<p>Appeal-from Gadsden City Court.</p> <p>Tried before tbe Hon. John H. Disquio.</p>

<p>Appeal from Birmingham City Court, in Equity.</p> <p>Heard before the Hon. W. W. Wilkerson.</p>

<p>Appeal from'Mobile Chancery Court.</p> <p>Heard before tbe Hon. William H. Tayloe.</p>

<p>Appeal from Talladega Probate Court.</p> <p>Heard before the Hon. G. K. Miller.</p>

<p>Appeal from Pike Criminal Court.</p> <p>Tried before the H.on. E. B. Wilicerson.</p>

<p>Appeal from the Chancery Court of Lawrence.</p> <p>Heard before the Hon. William H. Simpson.</p>

<p>Appeal from Montgomery City Court, in Equity.</p> <p>Heard before the Hon. A. D. Sayre.</p>

<p>Appeal from Fayette Circuit Court.</p> <p>Tried before the Hon. S. H. Sprott.</p>

<p>Appeal from Montgomery City Court.</p> <p>Tried before the Hon. A. D. Sayre.</p>

<p>Appeal from Conecuh Circuit Court.</p> <p>Tried before the Hon. John R. Tyson.</p>

<p>Appeal from Wilcox County Court.</p> <p>‘Tried before the Hon. James T. Beck.</p>

<p>Appeal from Chilton Circuit Court.</p> <p>Tried before t'he Hon. N. D. Denson.</p>

<p>Appeal from County Court of Macon.</p> <p>Tried before the Hon. H. H. Hurt.</p>

<p>Appeal from the City Court of Anniston.</p> <p>Tried before the Hon. James W. Lapsley.</p>

<p>Appeal from Circuit Court of Conecuh.</p> <p>Tried before the Hon. John R. Tyson.</p>

<p>Appeal from Morgan Chancery Court.</p> <p>Heard before tbe Hon. William H. Simpson.</p>

<p>Appeal from Circuit Court of Choctaw.</p> <p>Tried before tbe Hon. John C. Anderson.</p>

<p>Appeal from Birmingham City Court.</p> <p>Tried before the Hon. H. A. Si-iarpe.</p>

<p>Appeal from Calhoun Chancery Court.</p> <p>Heard before the 1-Ion. J. R. Dowdell.</p>

<p>Appeal from St. Clair Circuit Court.</p> <p>Tried before the Hon. George E. Brewer.</p>

<p>Appeal from Anniston City Court.</p> <p>Tried before the Hon. James W. Lapsley.</p>

<p>Appeal from Shelby County Court.</p> <p>Tried before the Hon. D. R. McMillan.</p>