Volume 185 — Alabama Reports

Percy E. Brooks was convicted of an assault with intent to ravish, and appealed to the Court of Appeals, which court affirmed the judgment and sentence of the trial court, and he brings certiorari to review the action of the Court of Appeals. Writ awarded, and judgment of Court of Appeals, reversed and remanded, remanding the cause for a new trial.

Heard before Hon. William E. Fort. Carrie Bryant was convicted of murder in tbe second degree, and sbe appeals.

Heard before Hon. O. J. Semmes. . Frank Clayton was convicted of murder in the first degree, and he appeals. The facts sufficiently appear from the opinion.

Heard before Hon. D. W. Speaks. Jess Campbell was convicted of murder in the first ■ degree and sentenced to life imprisonment, and he appeals.

Heard before Hon. Thomas W. Coleman, Jr. Alexander Waldrop was convicted of killing his wife and given the death penalty, and he appeals. The minutes of the court show the following: Comes the state by its solicitor, and defendant in his own proper person and by attorney, and said defendant being duly arraigned upon said indictment, for his plea thereto says not guilty.

Heard before Hon. A. E. Gamble. Richard Dudley was convicted of murder in the second degree and he appeals. The indictment is not subject to demurrer. — Sec. 7149, Code 1907; Hornsby v. State, 94 Ala. 55. What defendant said when he procured the gun was admissible. — Dommgus v. State, 99 Ala. 12; Fonmlle v. State, 91 Ala. 39.

Heard before Hon. William E. Fort. John Walker, alias, etc., was convicted of murder in the first degree, sentenced to life imprisonment, and appeals. Several witnesses testified that they were present at the home of deceased on the night she was shot; that she was shot in the stomach with a pistol and lived about 10 or 11 days thereafter, when she died at a hospital.

J. C. Mangeldorf was convicted of violating an act for the preservation of oysters and he appeals to the Court of Appeals, where the judgment of the lower court was affirmed, and he brings certiorari to' review tbe judgment and action of tbe Court of Appeals. Writ denied. Counsel cite State v. Parker, 5 Ala. App. 231; Mangeldorf v. State, 8 Ala. App. 302; as supporting tbe judgment of tbe Court of Appeals.

<p> Divorce. </p> <p>Divorce; Abandonment. — If the wife be compelled by the conduct of her husband to leave him for her own comfort and happiness, the abandonment is not voluntary; in such cases, however, the evidence should be clear and satisfactory that the abandonment was voluntary and without fault on the part of the other party.</p>

Heard before Hon. W. H. Simpson. Bill by Marvin West as trustee in bankruptcy of the estate of Hervey Cartwright, against Emma D. Cart-right and others, to set aside certain conveyances of the bankrupt as void as to creditors. Decree for complainant and respondents appeal. Affirmed in part, and reversed-and remanded in part.

Heard before Hon. W. H. Simpson. Bill by the Alabama Fuel & Iron Company against the Sheffield Coal & Iron Company, for the sale of certain coal lands for partition among the joint owners thereof. From a decree declaring that the lands could not be equitably partitioned in kind, and ordering a sale thereof, respondents appeal. Counsel insists that the testimony does not justify the decree rendered, and in support thereof cites Keaton v. Terry, 93 Ala. 85; 30 Cyc. 174.

Heard before Hon. L. D. Gardner. Bill by Cincinnatus Pennington against W. A. Gayle and others, for a discovery and an accounting. From a decree overruling demurrers to the amended bill, respondents appeal.

Bill by R. R. Roe and another against J. M. Eason and others, to compel specific performance, and to enjoin an action in ejectment pending the outcome of the present controversy. Decree for complainants and respondents appeal.

Heard before Hon. W. H. Simpson. Bill by the Christian Church at Pilgrim’s Rest, against the Littleville Camp, No. 258, Woodmen of the World, and others to reform a deed. Prom a decree denying relief, complainant appeals. The bill makes the following case: On July 29, 1910, •one Murray and Bullington executed the following •deed: “State of Alabama, Franklin- County. Know .all men by these presents, that we, Sally Murray, and M. C. Murray, and J. I).

Heard before Hon. W. H. Simpson. Bill by Charles Macklin Cross and others against I. L. Coffey and others. Prom a decree for complainants, defendants appeal.

Clair Circuit Court. Heard before Hon. J. E. Blackwood. Bill by W. R. Dunlap and others against W. E. Regan to quiet title to certain lands. Decree for respondent and complainant appeals. The bill and the proof showed such possession as would authorize a decree quieting title. — Brand v. U. S. Gar Go., 128 Ala. 579; Acller v. Sullivan, 115 Ala. 582.

Heard before Hon. A. H Benneks. Bill by J. T. Sellers against John F. Knight and others, to cancel certain conveyances, and re-invest title in complainant. From a decree denying relief complainant appeals. The answers of defendants Patrick and Webber are mere general denials and do not put in issue the allegations of the bill. — Shiff & Sons v. Andress, 40 South. 824; Prestige v. Wallace, 155 Ala. 540; Gamble v. Altman, 125 Ala. 872.

Heard before Hon. Thomas H. Smith. Bill by Ruth Canty against E. H. Bixler and others to redeem from mortgage foreclosure sale. Decree for respondents, and complainant appeals. Columbus Canty executed a mortgage to one Barrett some years before the foreclosure sale, and Barrett transferred the mortgage to the State Land Company. Canty afterwards died, but just when does not appear.

Heard before Hon. W. W. Whiteside. Bill by W. P. Arnett against Laura P. Handley and others, to enforce a vendor’s lien. From a decree for respondents, complainant appeals. The respondent cannot be a bona fide purchaser for value without notice because she did not pay value for the lands.— Craft v. Russell, 67 Ala. 9.

Heard before Hon. Thomas W. Wert. Bill by John M. Sheridan against E. M. Brown and others, to specifically perform. Prom a decree overruling demurrers, respondents appeal. The bill shows that respondents sold to complainant certain real estate, and that he has paid them the agreed purchase price, received possession from them, and made valuable improvements.

Heard before Hon. L. D. Gardner. Bill by the W. T. Smith Lumber Company against J. T. Jernigan and another to restrain each of them from interfering with the complainant in entering upon the lands described, and removing and cutting all hard wood timber growing thereon, suitable for sawlogs, for an accounting, and for a perpetual injunction upon final hearing. From a decree for respondent complainant appeals.

Heard before Hon. W. W. Whiteside. Bill by J. L. Watrous against Albert N. Butler and others, to enforce a constructive trust in land. Decree for complainants and respondents appeal. Under the well understood definition of a resulting trust complainant is not entitled to have such a trust declared in his favor in the Howison land. —62 Ala. 129; 3 Pom. Eq. secs. 981, 1035-6-7; B. & A. R. R. Go. v. L. & N. R. R. Go., 152 Ala. 422; Watkins v. Garter, 164 Ala. 456.

Heard before Hon. W. H. Simpson. Bill by J. J. Narrell against the J. R. Phillips Mercantile Company to enjoin an action of ejectment, and to redeem in his own right as mortgagor. Decree for respondent and complainant appeals. The wife’s signature was not sufficiently attested. — Sec. 4161, Code 1907. A justice of the peace has no jurisdiction outside of his own county. — Am. Mfg. Go. v. King, 105 Ala. 358; N. E. Mfg. Go. v. Payne, 107 Ala. 578.

Heard before Hon. Thomas W. Wert. Bill by John L. Brock against the City of Decatur and W. R. Spright and Joseph H. Calvin, contractors, to ascertain and decree the correct amount of benefits or increased value accruing to complainants’ real estate by reason of certain improvements carried out by the city of Decatur, and that said amount be declared a lien upon the same, and to enjoin and restrain the city, or its officers or agents, from asserting or attempting to assert,…

Heard before Hon. W. T. Lowe, Special Chancellor. .Bill by D. W. Speake against James L. Echols and others, to determine to whom a note and mortgage was payable. From a decree granting relief, respondents appeal.

Heard before Hon. W. H. Simpson. Bill for an accounting by John H. Snodgrass as administrator, against Eliza A. Snodgrass, as administratrix. From a decree overruling demurrers to the bill, respondent administratrix appeals.

Heard before Hon. A. H. Benners. Bill by James F. Sulzby against Mrs. Palmer to foreclose a mortgage. From a decree overruling demurrers to the bill, respondent appeals. The bill was insufficient in its statement of fact to show a consideration and its nature for the mortgage sought to be foreclosed, and failed to show a necessity for a foreclosure as the mortgage' contained a power of sale. — Sec. 3094, Code 1907, and cases cited.

<p> Bill to Ascertain Mortgage Debt and to Foreclose. </p> <p>1. Mortgages; B'oreclosure; Parties. — In a bill to foreclose a chattel mortgage given for advances, an allegation that a respondent had actual knowledge of the advancements made by complainant to respondent’s husband, and enjoyed them, and that the crops raised by the mortgagee on which the mortgage was given were raised on lands owned by him and respondent jointly, did not show any interest in such respondent in the mortgage property, and hence, such respondent was improperly joined.</p> <p>2. Same; Priority; Lien for Bent. — A landlord’s lien for unpaid rent is superior to a crop mortgage executed by the tenant, and hence, the lien of the landlord would not be affected by a decree foreclosing such mortgage, and the landlord should not be joined in such an action.</p> <p>3. Equity; Pleading; Multifariousness. — A bill seeking to foreclose a chattel mortgage on crops and also to redeem from the landlord of the mortgagor as a superior lienholder would be multifarious as' joining wholly distinct and unrelated matters.</p>

Heard before Hon. W. W. Whiteside. Bill by A. K. Welden and others against J. H. B. Brown for a partition of certain lands. From a decree sustaining demurrers to the bill because of uncertainty in the description, complainants appeal. The description was sufficient. — Gaston v. McCord, 130 Ala. 318.

Heard before Hon. W. W. Whiteside. Bill by W. S. Stovall & Brother, against Mary C. Davis and others, to set aside a conveyance as a frand upon creditors. Decree for complainants and respondents appeal.

Heard before Hon. C. J. Torrey, Special Judge. Bill by A. E. Morris and another against Isaac W. Marshall for review to revise the decree rendered by the chancery court in favor of said Marshall. From a decree sustaining demurrer to the bill, complainants appeal. While a bill of review is not available in lieu of an appeal or writ of error, it is available to correct errors apparent on the record. — Vary v. Thompson, 166 Ala. 1; Tcmhersley v. Pettis, 61 Ala. 354.

Heard before Hon. L. D. Gardner. Bill by Sallie B. Kenan and others against W. D. Mc-Curdy and others for the sale of land for division. De- • cree for complainants, and respondent McCudy appeals.

Heard before Hon. W. H. Simpson. Bill by Arletha F. Davis against the South & North Alabama Railroad Company and others to restrain the construction of a sidetrack in a street in front of complainants property until compensation is made. Decree for complainant and respondents appeal. If the dedication was made, it was made in the year 1874, and was a common law dedication. Hence, it conveys the mere easement and not the fee. — rDillon Mun.

Heard before Hon. Lum Duke. Bill by Mary E. Griffin against W. S. Griffin and another to remove an estate from the probate to the chancery court, and to set aside the widow’s homestead exemptions and dower. From a decree overruling demurrers to the bill respondents appeal.

Heard before Hon. John H. Disque. Action by J. A. Hartsell against J. F. Roberts and others. Judgment for defendants, and plaintiff appeals. Transferred from the Court of Appeals under Acts 1911, p. 450, § 6. The claim was based on a promissory note or bond attached to a mortgage alleged to have been executed by the defendant to Hartsell & Day, which note is alleged to have been transferred without recourse, before maturity.

Heard before Hon. Hugh D. Merrill. Assumpsit by Oma Dickert and another against E. M. Sellers and another. From a judgment for plaintiffs, defendants appeal. Most of the facts appear from the opinion.

R. H. Sample brought au action against S. H. Stewart as administrator to recover on an assignment, and recovered judgment, which was affirmed on appeal to the Court of Appeals.— (Stewart v. Sample, 8 Ala. App. 663; 62 South. 338). The administrator brings certiorari to review that decision and judgment. Certiorari granted and the judgment of the Court of Appeals reversed in part and in part affirmed.

Heard before Hon. D. H. Riddle, Special Judge. Assumpsit by the Citizens’ National Bank of Line-ville against John S. Bruce. Judgment for plaintiff, and defendant appeals. The pleas were: (1) Tbe general issue. (2) Failure of consideration. (3) Failure of consideration.

Heard before Hon. John C. Pugh. Action by J. J. Savage against the United States Health & Accident Insurance Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. H. A. Sharpe. Assumpsit by Henry Ruff against the Messer Real Estate & Insurance Company. Judgment for plaintiff and defendant appeals. Buff paid, the Messer Beal Estate & Insurance Company $1,000 earnest money to bind the contract of sale of real estate which fully appears from the opinion.

Heard before Hon. W. W. Pearson. Assumpsit by the Commercial Bank & Trust Company against Howell Tatum, with garnishment in aid of suit served upon A. H. Arrington, and attachment levied upon real estate. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Samuel B. Browne. Assumpsit by William A. Holt and others, by next friend, against Hermann & Hynde. From a judgment for defendants, plaintiffs appeal.

Heard before Hon. John H. Disqtie. • Assumpsit by the Alabama City, Gadsden & Attalla Railway Company against the city of Gadsden to recover interest on city warrants. Judgment for defendants and plaintiff appeals. Although the principal sum had been paid, still plaintiff was entitled to recover the interest on the warrant. — -22 Cyc. pp. 1570-72, where the two rales are clearly stated. Under the evidence, however, the principal debt had not been paid.

Heard before Hon. John. H. Disque. Attachment by C. B. McMahan against N. B. Browne. There was judgment for plaintiff which was set aside on defendant’s motion and plaintiff appeals. (Transferred from Court of Appeals.) The judgment was sufficient as against collateral attack. — Sec. 2931, Code 1907; Diston v. Iioocl, 83 Ala. 331. The action of the court in setting aside the judgment should be affirmed on the authority of Wilmerding v. Corbin B. Co., 126 Ala. 269.

The Phillips-Neely Mercantile Company sued T. C. Banks in assumpsit, and there was judgment for defendant Banks, whereupon an appeal ivas taken to the Court of Appeals, and the judgment of the city court was reversed and the cause remanded. (See 8 Ala. App. 549, 63 South. 31.) Appellee Banks brings certiorari to review the judgment and decision of the Court of Appeals.

Heard before Hon. Gaston Gunter. Tbe City of Montgomery sued tbe County for a proportionate part of the special tax levied and collected by tbe county for road purposes. Judgment for defendant and plaintiff appeals. Tbe pnly question is tbe constitutionality of the Acts of 1909, p. 304, and the effort here is to sustain tbe constitutionality by showing that tbe Constitution has been misconstrued.

Action by J. H. Pepper against the American Central Insurance Company. A default judgment for failure to answer interrogatories was reversed and remanded by the Court of Appeals on defendant’s appeal (9 Ala. App. 191, 62 South. 397), and plaintiff brings certiorari.

Heard before Hon. W. M. Walker. Action by Herbert W. Smith against the Amzi God-den Seed Company, for breach of warranty. Judgment for defendant, which on plaintiff’s motion was set aside and defendant appeals.

Heard before Hon. H. A. Si-iarpe. Action by Francis Connelly as beneficiary, against the Supreme Lodge Knights of Pythias of the World, under a mutual benefit insurance policy issued by defendant. Judgment for plaintiff and .defendant appeals. Count 4 as amended was demurrable. — Assur. Go. v. McGlatcher, 115 Ala. 213. The court erred in sustaining demurrers to plea 2. — Fraternal U. v. Zeigler, 145 Ala. 287; Supreme Gommandry v. Ainsworth, 74 Ala. 36.

Heard before Hon. H. A. Pearce. C. W. Simmons bad judgment against Nick McGowan, and entered a motion to amend tbe judgment nunc pro tunc to show that tbe default judgment was rendered by the court, and that a jury was called and came and ascertained tbe damages. Prom an order granting tbe motion and amending tbe judgment, defendant appeals. Tbe minutes are. tbe sole memorial of wbat tbe court did. — Winn v. McGrcmey, 156 Ala. 635.

Heard before Hon. E. C. Crowe. Assumpsit by the Birmingham Paint & Glass Company against Mrs. Lula Beitman and another, as to whom the case was discontinued at the trial. Judgment for plaintiff, and defendant named appeals. The facts sufficiently appear from the opinion.

Heard before Hon. D. W. Speaks. Assumpsit by tbe Parry Manufacturing Company against W. W. Garnett for tbe price of a dray. Judgment for plaintiff and defendant appeals. A purchaser of goods with warranty as to quality expressed or implied, may recover for breach of tbe warranty without notice to the seller of tbe defects, and return or tender of tbe goods. —70 S. W. 615.

Heard before Hon. E. C. Crowe. Action by W. L. Weller & Sons against Harry Kens-ford, as administrator in assumpsit for a claim against his decedent. Judgment for defendant, and plaintiffs appeal.

<p> Assumpsit. </p> <p>1. Contract; Employment; Breach; Evidence. — Where the action was for breach of contract of employment, and there was evidence that the employer had sent plaintiff to Texas with another salesman, and had placed him under the management and direction of such other salesman, the court properly permitted plaintiff to question said other salesman as to his contract with the company employing plaintiff, since it tended to show service by plaintiff, and was corroborative of his testimony as to what the employer directed him to do in Texas.</p> <p>2. Same. — Where the employer sent the employee to Texas with another salesman and placed him under the direction and control of such other salesman and directed such other salesman to pay the employee’s expenses, the court properly permitted the employee to show by such other salesman that he did not pay the employee’s expenses back to Alabama, the failure to pay such expenses being one of the bases for the action for breach of the contract.</p> <p>3. Same; Construction. — Where an employer contracted with a salesman to sell churns and territory, agreeing to pay his expenses, and sent him to Texas, and placed him under the direction of another salesman, the question whether the employee could' recover for his expenses for the trip back to Alabama, depended upon the question of fact whether such other salesman directed him to return to Alabama, and if so, whether he had such authority, both questions being for the jury under the evidence.</p> <p>4. Charge of Court; Invading Jury’s Province. — Charges which if given would take from the jury the decision of questions which were properly jury questions are refused without error.</p>

<p> Assumpsit. </p> <p>1. Sales; Contract; Breach; Complaint. — After averring performance on plaintiff’s part, an allegation in a complaint for breach of a contract of sale that defendant attempted to repudiate the agreement and refused to carry it into effect to plaintiffs damage, wherefore, plaintiff avers that the sums of money claimed with interest thereon were due and unpaid, were sufficient to charge defendant’s breach of contract, as against the demurrers interposed.</p> <p>2. Evidence; Documents; Authentication. — Where a witness testified that defendant attached her signature by her own hand to the written, unattested contract sued on, the contract was sufficiently authenticated to render it. admissible in evidence.</p> <p>3. Appeal and Error; Record; Revieio. — Where the bill of exceptions showed no charges given or refused, an objection that the court erred in refusing defendant’s request for the general charge, will not be reviewed on appeal, although such a charge was copied in the transcript with a notation of the court’s refusal thereof.</p>

Original petition in the Supreme Court. The state on the relation of the Attorney General applied for a writ of prohibition to restrain the judge of the 8th judicial circuit from entertaining jurisdiction of the petition of Charles Silverman for discharge on habeas corpus from the custody of the sheriff of Morgan county, who held him under contempt proceedings from the law and equity court of Morgan county.

Original petition in the Supreme Court. Petition by the State of Alabama, on the relation of Susan MeKleroy and others, for mandamus to require Hon. A. H. Benners, as chancellor, of the Northwestern chancery division, to set aside and vacate an order of reference, and to appoint a special register to- execute the same. The case made by the petition is that petitioners filed a bill in the Walker chancery court against L. B. Mus-grove, individually, and as guardian of J. 0.

Heard before Hon. H. A. Sharpe. Mandamus by the Railroad Commission of Alabama, against the Alabama Great Southern Railroad Company, and other railroads, to compel them to unite in building and maintaining a union passenger station as required by certain orders issued by the commission. From a judgment denying the writ relator appeals.

Heard before Hon. W. W. Peakson. Petition by John S. Drago, in the name of the State, for mandamus against C. Brooks Smith, State Auditor, to require him to issue his warrant, in favor of petitioner, for certain sheriff’s fees. Prom a judgment denying the writ, petitioner appeals.

Heard before Hon. E. C. Crowe. Quo warranto by the State, on tbe relation of James Weatherly, against the Birmingham Waterworks Company. From a decree for defendant, relator appeals.

Original petition in the Supreme Court. Petition for mandamus by W. T. Lawler, individually and as Judge of Probate, to compel James H. Ballentine, judge of the law and equity court of Madison county, to strike from the court files a grand jury report, recommending petitioner’s impeachment. Petition denied.

Heard before Hon. J. J. Curtis. The proper authorities haying declared James W. Shepherd elected judge of probate of Walker county, and haying denied Charles M. Sartain the right to said office, he files contest of said election. From a judgment for contestant contestee appeals. See in this connection 172 Ala. 205, 55 South. 627; 173 Ala. 474, 55 South. 919.

Heard before Hon. A. H. Alston. Suit by W. L. Elsberry against the Royal Lumber Company, a partnership, to recover the statutory penalty for a failure to satisfy a mortgage of record. Judgment for plaintiff and defendant appeals. (Transferred from Court of Appeals.) Mr. Abney testified as follows: That he lived in Georgia, and that in 1909-10 had a transaction with the Royal Lumber Company with reference to the mortgage indebtedness of Mr. Elsberry.

Heard before Hon. Thomas W. Coleman, Jr. Bill by William A. Scarbrough, and another, against A. Lee Scarbrough to declare a will void, and to administer an estate according to the law of distribution. Decree for respondent and complainants appeal.

Heard before Hon. Thomas W. Coleman, Jr. Proceedings by the state of Alabama for the assessment and collection of back taxes on certain lands of the Anniston City Land Company claimed to be exempt because used for school purposes. Prom a judgment subjecting the land to such taxation, the Land Company appeals. For former appeal in this case see 160 Ala. 252, 48 South. 659. The property-being used for school was exempt from taxation under section 91, Constitution 1901.

Heard before Hon. James H. Ballentine. Certiorari by Nannie H. Pierce to bring up for review the record and proceedings instituted by the city of Huntsville against petitioner for an assessment against her property for street improvement. From an order quashing the writ, petitioner appeals. The court below decided, this case upon the authority of City of Birmingham v. Wills, 59 South. 173, and Garner v. City of Anniston, 59 South. 654.

Heard before Hon. H. A. Pearce. Petition by B. B. Ballard for certiorari to annul an order of the commissioner’s court of Coffee county for the establishment and opening of a private road. From a judgment granting the writ and quashing the order respondents appeal. The other branch of this case is reported in Ballard v. Cook, 166 Ala. 105.

Heard before Hon. Norman Gunn, Special Judge. Stock law election contest by R. M. Hutto and others against Walker County. From a decree dismissing the petition, petitioners appeal. The election was held in beat 9 of Walker county on February 26,-1913, at which the proposition for prohibiting stock at large was affirmatively carried by a majority of one vote according to tbe official return.

Tbe American Supply Company had judgment against J. H. Fuller and bad execution thereon levied upon a bouse and lot as tbe property of such Fuller. Fuller interposed claim of homestead exemption which was contested, and from a judgment sustaining tbe contest Fuller appeals. Under tbe following authorities it must be held that tbe court was in error in directing a verdict in favor of tbe contestant.

Heard before Hon. Bernard Harwood. Certiorari on the part of B. F. Pendley to quash an order establishing a stock law district in Fayette county, entered by the commissioners’ court of said county. From a judgment quashing the certiorari, plaintiff appeals.

Petition by S. E. Logan for certiorari to the Court of Appeals to review the judgment and decision of that court in the case of Logan, et al. v. Smith Bros. Go., 9 Ala. App. 459, wherein the judgment of the circuit court was affirmed. The pleas were good as pleas of estoppel, and the court erred in sustaining demurrers thereto. — Fuller v. Fames, 108 Ala. 464; Thomason v. Leiois, 103 Ala. 426; Hiójmian v. Richburg, 122 Ala. 638; 62 Am. St. Rep. 187; 59 Am.

Detinue by the International Harvester Company of America, against C. E. Hoobler. Judgment for plaintiff, and defendant appeals. The following are the pleas referred to: (3) Defendant says that plaintiff claims the property sued for under and by virtue of a mortgage dated on or about the 17th day of December, 1910.

Heard before Hon. H. A. Pearce. Detinue by Allen Holman against W. W. Wise and another, in which J. E. Henderson interposed as claimant for the property sued for as required by the statute. Judgment for plaintiff and claimant appeals. Under the facts in this case there was a delivery to the sheriff in discharge of his bond.- — Willoughby v. J enligan, 60 South. 514.

Ejectment by S. E. Trotter against T. J. Kilpatrick and others. From a judgment for plaintiff, defendants appeal. Plaintiff adduced title by deed from the Columbus Iron Works and from Smith Bros. & Co. to William and S. E. Trotter, of date February 6, 1900, and from William Trotter to S. E. Trotter, of date March 4, 1903,. describing the lot in controversy, which deeds are set out.

<p>Appeal from Gadsden City Court.</p> <p>Heard before Hon. W. T. Murpi-iree, Special Judge.</p> <p>Ejectment by John Doe on the demise of Standifer against Richard Roe with notice to J. T. Styles. Judgment for defendant and plaintiff appeals.</p> <p>The evidence was not sufficient to show adverse possession on the part of appellee and those under whom he claims. —Rucker v. Jackson, 60 South. 139; Hoyle v. Mann, 144 Ala. 516; Powers v. Hatter, 152 Ala. 636; Jackson L. Co. v. McCreary, 137 Ala. 238; Lecroioo v. Malone, 157 Ala. 434.</p> <p>A plaintiff must recover on the strength of his own title, and not on the ■defects of that of his adversary. — McCreary v. Jackson L. Co., 148 Ala. 237, s. c. 168 Ala. The appellant showed ■sufficient adverse possession under the tax sale, having-held the same for three years or more. — Sec. 2311, Code 1907; Capehart v. Guffey, 130 Ala. 428; Bankhead v. Hooper, 171 Ala. 637; Reddick v. Long, 124 Ala. 265; Owen v. Mowon, 17.1 Ala. 623, and authorities cited in these cases.</p>

Heard before Hon. W. W.. Pearson. Ejectment by M. J. Hopkins against J. H. Justice. Judgment for plaintiff, and defendant appeals. Plaintiff claims through deeds from J. H. Justice and wife to Ida Justice, from Ida Justice to J. C. McKenzie, and from McKenzie to plaintiff.

Heard before Hon. A. H. Alston. Ejectment by Blake B. Price against D. M. Collum and others. Judgment for plaintiff and defendants appeal. Until the will was admitted to probate in Alabama it had no efficacy to pass title to real estate in this state, except in the manner provided by sections 6189-6191, Code 1907. — Goodman v. Winter, 64 Ala. 410; Dickey v. Vann, 81 Ala. 425; Brock v. Frank, 51 Ala. 85; Ward v. Oates, 43 Ala. 515.

Ejectment by J. A. Denman against W. L. Gilley and J. A. Brown. Judgment for plaintiff, and defendants appeal. The issues raised are sufficiently stated.

Heard before Hon. H. A. Pearce. Ejectment by M. M. Riley against J. H. Fletcher. Judgment for defendant, and plaintiff appeals. The evidence complained of sufficiently appears from the opinion.

Heard before Hon. W. W. Haralson. Ejectment by S. C. Capehart against Dick Roden and others. Judgment for plaintiff and defendants appeal. The description of the land sued for is indefinite and uncertain in such a sense as not to state a substantial cause of action.— Goodwin v. Forman, 114 Ala. 487; 35 Ind. 74. This being true, the question could properly be raised by demurrer to the complaint.- — -Li/nam v. Jones, 134 Ala. 579; section 4143, Code 1907, and cases cited.

. Appeal from Mobile Law and Equity Court. Heard before Hon. Saffold Berney. Ejectment by John Doe on the demise of Minow B. Moore, with notice to Luciana F. Boulo. Judgment for defendant and plaintiff appeals. Whether there is any evidence is a question for the court, but its weight is for the jury. — Homes v. Brownlee, 71 Ala. 132. Inferences from the papers are to be drawn by the jury alone. — State v. Patterson, 68 Me. 473; Reynolds v. Richard, 14 Pa. St. 205; 11 Ene.

Heard before Hon. E.'J. Garrison. Ejectment by J. A. Burgess against Madison Hicks. Judgment for plaintiff, and defendant appeals. The land in dispute Avas a small portion of the g. E. 14 of the g. E. 34, section 21, township 16, range 10, Cleburne county, which Avas cut off from the rest of the 40 by the Tallapoosa river.

<p>Appeal from Jackson Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Ejectment-by W. N. Bain against Emaline Holder and others. Prom a directed judgment for plaintiff, defendants appeal.</p>

Ejectment by Kate Appleton Jordan against R. R. Smith. Judgment for defendant and plaintiff appeals. Under the evidence there could be no adverse possession of these lands as against the remaindermen until after the termination of the life estate. — Gindrai v. Wes. Ry., 96 Ala. 162.

Heard before Hon. Hugh D. Merrill. Action by A. M. Doss against the Wadsworth Red Ash Coal Company. Prom a judgment granting a new trial after verdict for plaintiff, plaintiff appeals. The first count is predicated on Code, § 8910, subd. 1, in that in a certain entry of the mine rock and slate fell upon plaintiff, injuring him, because the roof of said entry was not properly timbered.

Heard before Hon. W. M. Walker. Action by Edward Warble, a minor, by next friend, against the Sulzberger Company of America for damages received while performing duties under his employment. Judgment for defendant and plaintiff appeals. The court erred in overruling demurrers to the 12th plea. — Osborn v. Ala. 8. & W. Go., 135 Ala. 571; Marbury L. Go. v. Westbrook, 121 Ala. 180; T. G. I. & R. R. Go. v. Burgess, 158 Ala. 519.

Heard before Hon. T. L. Sowell. Action by Solomon A. Smith against the Sloss-Sheffield Steel & Iron Company, for damages for injuries received while in its employment. Judgment for plaintiff, and defendant appeals. On a former appeal of this case, reported in 166 Ala. 437, 52 South. 38, demurrers were sustained to several counts of the complaint, which was afterwards amended by the substitution of two practically new counts, 4 and 6.

Heard before Hon. Jopin T. Lackland. Action by J. M. Howard against the Tombigbee Valley Railroad Company. Judgment for plaintiff, and defendant appeals. As originally filed, the complaint contained two-counts.

Heard before Hon. E. C. Crowe. Action by Mrs. Annie O’Brien against the Birmingham Railway, Light & Potver Company. Judgment for plaintiff and defendant appeals. The following is the complaint: Count 1. Plaintiff claims of defendant $20,000 as damages for that, heretofore, to wit, on or about the -day of February, 1911, defendant was operating an electric railway in the city of Birmingham, running cars and carrying passengers for hire.

Heard before Hon. C. P. Almon. Action by John 0. Little against the Western Union Telegraph Company, for damages for delay in delivery of a death message. Judgment for defendant and plaintiff appeals. The court was in error in giving the affirmative charge for defendant. — Bates v. Harte, 127 Ala. 427; Mo'mar v. Rosser, 123 Ala. 641; L. é N. v. Lancaster, 121 Ala. 471; Manker v. W. U. T. Co., 131 Ala. 294.

Heard before Hon. Htjgi-i D. Merrill. Action by Howard Cardwell, by next friend, against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. • The pleadings and facts sufficiently appear in the opinion.

Heard before Hon. H. A. Pearce. Action by James H. Blackmon as administrator against the Central of Georgia Railway Company, for the death of his intestate caused by a train striking him while walking along the track of defendant. Judgment for defendant and. plaintiff appeals. The complaint was not subject to the demurrers interposed. — 93 Ala. 26; 113 Ala. 640; 117 Ala. 371; 123 Ala. 244; 125 Ala. 202; 153 Ala. 134.

Heard before Hon. Ti-iomas W. Coleman, Jr. Action by' Dixie Davis Scott against the HarbisonWalker Refractories Company. From a judgment for plaintiff, defendant appeals.

Heard before Hou. John T. Lackland. Action by Ben Harris, Sr., against the A. J. Spencer Lumber Company, Incorporated, for damages for the death of his minor son. Demurrers sustained to the complaint, and plaintiff declining to plead further, his cause was dismissed and he appeals.

Heard before Hon. C. B. Smith. Action by J. D. Watkins against the Gorman-Gammil Drug Company for damages for the death of a cow resulting from the furnishing of common salt where Epsom salts had been applied for. Judgment for plaintiff .and defendant appeals.

Heard before Hon. John H. Miller. Action by W. H. Lane .against the Alabama Penny Savings Bank and another for damages growing out of an attachment proceeding. Prom a judgment sustaining demurrers to the complaint, plaintiff appeals.

Action by Brown & Flowers against the Central of Georgia Railway Company, for damages for death of a mule. Judgment for defendant and plaintiffs appeal.

Heard before Hon. D. W. Speaks. Conversion by J. T. Thompson against L. H. Johnson. Judgment for plaintiff, and defendant appeals. Plaintiff sued the defendant in an action on the case for the conversion of certain cotton, upon which plaintiff claimed a lien for rent and advances for the year 1911, as landlord or Clarence Hendrix, who grew the cotton on the rented premises.

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to- Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>