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La.)

(100 So.) V.

full, from the date of that deed until the [1,2] As we have said before, plaintiff filing of this suit (a period of nearly 30 years) by receiving and disposing of her share in is not disputed. the estate, has so far ratified the settlement

and the deed on its face purports to conthereof that she cannot claim a rescission vey the property. thereof unless for lesion. But the Code does

The evidence satisfies us that G. W. Shaw, not allow the rescission of a partition for Ir., believed in good faith that the children lesion unless beyond one-fourth. C. C. art. of his foster parents were satisfied to allow 1861. And the lesion which plaintiff has suf-him a share in the succession of their brothfered in this case is less than that, for as er; there was not the least occasion for him aforesaid it is the difference between the to think otherwise, since they actually al. sis-sixtieths which she should have received lowed him that share; and for 29 years and the tive-sixtieths which she actually never as much as whispered any complaint did receive. So that she received only five about it. In fact none are complaining even sixths of what she should have received; now except this one plaintiff. in other words she suffered lesion to the

The district judge says: extent of one-sixth of her share.

"G. W. Shaw, Senior, in perfect good faith, Bearing in mind, therefore, that G. W. acting upon the contents of a letter, signed a Shaw, Jr., by reason of his half interest in deed, translative of property to G. W. Shaw, the land, was not only a proper but even a necessary party to the partition thereof,

[3] The fact that G. W. Shaw, Sr., may we have here a partition between co-owners, not have had authority to sign such a deed in which one of them bas suffered lesion not does not deprive that deed of its character exceeding one-fourth. - But such an error does not render the partition radically pull transferring the ownership of the property.

of a "just title"; i. e., a deed apparently (Barbarich v. Meyer, 154 La. 325, 97 South.

O. C. 3478, 3484, 3485. 459; Metropolitan Bank v. Times-Democrat

In Greening v. Natalie Oil Co., 152 La. Publishing Co., 121 La. 547, 46 South. 622; Bayhi v. Baybi, 35 La. Ann. 527), and does 467, 475, 93 South. 682, 685, it was held con

clusively settled thatnot give cause for rescission, because it does not exceed one-fourth (C. C. art. 1861). "A sale of immovable property, followed by

Therefore even as between the parties tradition, by a person styling himself the atthereto plaintiff has no cause for rescission torney in fact of the owner, but whose power of the settlement. But since the law and for want of the evidence of his authority, and

of attorney is not produced is only defective the courts look at the substance of claims not for a nullity of form resulting from his legal put forward by litigants, and not alone at incapacity.” their form (Dawson v. Ohio Oil Co., 153 La. 657, 96 South. 508), it follows that this court And again: will look beyond the form which plaintiff has

"Where one takes upon himself, as the atchosen to give to her action (petitory) and torney in fact of another, to sell and deliver see that she is in effect seeking to rescind a possession, his deed may form the basis of partition, made by one purporting to act for prescription, because the defect consists in her, and actually ratified by her as we have the want of evidence of the mandate, and is said. This she cannot do, because the lesion not a nullity of form resulting from the inca

Citing: Bedford v. she suffered did not exceed one-fourth of her pacity of the vendor.”

Urquhart, 8 La. 241; Reeves v. Towles, 10 share.

La, 276, 284; Hall v. Mooring, 27 La. Ann. VI.

596; Giddens v. Mobley, 37 La. Ann. 417; Having disposed of this case on the merits, Dufour v. Camfranc, 11 Mart. (O. S.) 714. it hardly behooves us to consider the plea of prescription acquirendi causa herein filed

To which may be added the following holdby defendants, to wit, 10 years' possession ing substantially the same, to wit: Buhols under a title translative of property and in v. Boudousquie, 6 Mart. (N. S.) 153; Moore good faith. But since, under the constitu- v. Hampton, 3 La. Ann. 192; Delabigarre tional mandate, the decisions of one division v. Second Municipality, 3 La. Ann. 239; of the court go on rehearing to some other Johnson v. Carrere, 45 La. Ann. 847, 13 division for final action, we deem it proper South. 195; Westerfield v.' Cohen, 130 La. that this division, which heard the argument, 533, 58 South. 175. should assign all the reasons on which its

Decree. decision is based. That Geo. W. Shaw, Jr., and his succes

The judgment appealed from is therefore

attirmed. gors in title have been in possession of the land under the deed herein first set out in Rehearing fused by the WHOLE COURT.

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ty, Ala., where the transactions occurred SOUTHERN FINANCE CO. V. CASEY. (Laws 1900-01, p. 2685), restores the provi(6 Div. 270.)

sions and rules of the common law applica

Ble to usurious interest. (Court of Appeals of Alabama. May 20, 1924.)

The question is not an open one with us. Pawnbrokers and money lenders Om6 - Con- The local usury law of 1901, supra, applicable tract held usurious.

to certain counties in this state, including A transaction whereby plaintiff borrowed the county of Jefferson, has been declared to $50 from defendant, and paid back interest at be constitutional both by this court and the rate of 20 per cent. per month, resulting in a Supreme Court. Alabama Brokerage Co. v. final payment of $105, is'usurious under Laws 1900-01, p. 2685, the local usury law applicable Boston, 18 Ala. App. 495, 93 South. 289; Es to Jefferson county.

parte Alabama Brokerage Company, 208 Ala.

242, 94 South. 87. Appeal from Circuit Court, Jefferson Coun- Ford, 18 Ala. App. 167, 89 South. 837, we

In the case of Bullard Investment Co. v. ty; Joe C. Hail, Judge.

expressly held that the above local usury Action by Clyde Casey against H. H. law was applicable to just such transactions Mauck and others, doing , business as the as are here and now presented by this recSouthern Finance Company. Judgment for ord, so far as Jefferson county is concerned, plaintiff, and defendants appeal. Allirmed. and to hold otherwise under said law would

D. D. Trimble, of Birmingham, for appel- be no better than to legalize robbery. lants,

We find no error, and the judgment of the Arlie Barber, of Birmingham, for appellee. circuit court is affirmed.

Affirmed. BRICKEN, P. J. Under the complaint as amended in the court below, Clyde Casey, plaintiff, brought his action against Southern Finance Company, defendant, to recover the WOFFORD OIL CO. v. CITY OF RUSSELLsum of $55, with interest thereon accrued,

VILLE. (8 Div. 151.) for money had and received, as set forth in

(Court of Appeals of Alabama. May 20, count B of the amended complaint.

1924.) The only evidence offered upon the trial of this case was that of the plaintiff himself. Exceptions, bill of Cro43(1)-Fallure to file

bill of exceptions within time allowed neces. He testified, in substance, that he borrowed

sitates dismissal of appeal. certain sums of money from defendant, ag

Failure to file bill of exceptions within the gregating in all the sum of $50; that he paid 90 days allowed therefor, after rendition of as interest on the money borrowed from the judgment, necessitates dismissal of the appeal; defendant 10 cents on the dollar each 2 such matter being jurisdictional. weeks; that the total amount paid the defendant in this matter aggregated the sum

Appeal from Circuit Court, Lauderdale of $105. In other words, he borrowed $50 County; Chas. P. Almon, Judge. from defendant and paid back to him $105, or $55 more than he received, and his ac

Action by the City of Russellville against tion therefore was to recover this $55, with the Wofford Oil Company, to recover a privithe interest thereon accrued.

lege license. Judgment for plaintiff, and The defendant offering no evidence to dis- defendant appeals. Affirmed. pute or controvert the evidence of plain- London, Yancey & Brower, of Birmingham, tiff, the trial court at the request of plaintiff, and William Milliken, of Florence, for appel. in writing, gave the general affirmative lant. charge in behalf of plaintiff, and thereupon William Stell, of Russellville, for appelthe jury returned its verdict into court, as- lee. sessing plaintiff's damages at $60.86, whereupon judgment was pronounced by the trial BRICKEN, P. J. Appellee brought suit court in behalf of plaintiff for said sum, and against the appellant to recover a license from this judgment appellant prosecutes for doing business as an oil company in the this appeal.

city of Russellville during the year 1922.Five assignments of error are noted upon Judgment was rendered for plaintiff in the the record of which the third, fourth, and sum of $100, and defendant, appeals. fifth, are insisted upon. These three assign- The cause is submitted in this court upon ments of error are all argued together un- motion and merits; the motion being to der one proposition of law, and that is that strike the bill of exception upon the grounds usury paid voluntarily is not recoverable by that it was not presented to the trial judge an independent suit in the absence of a within 90 days from the date of the rendipromise to repay, unless the provisions of a tion of the judgment in this cause. Upon local usury law, applicable to Jefferson coun- examination we find that the judgment was

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(100 So.) rendered on the 5th day of June, 1923, and | 6. Witnesses On 268(1)-Cross-examination of that the bill of exceptions was not presented injured party in prosecution for assault as to to the trial judge until the 4th day of Sep- brooding over difficulty with defendant evetember, 1923. It thus appears that the facts

ning before held improper. stated in the motion are correct, and the

In a prosecution for assault, cross-examinamotion to strike the bill of exceptions must tion, which sought to show that injured party be granted, as the question involved, that of was brooding over difficulty with defendant the

"evening before," was improper, when there the presentation of a bill of exceptions, is was no evidence of an overt act on the part of jurisdictional, and, unless presented to the injured party, and no testimony as to selftrial judge as, and within the time, required defense by defendant. by law, the appellate court is without authority to consider same.

7. Criminal law Om 1169(1)-Statement of wit. The assignments of error noted upon this

ness in prosecution for assault held not to record are confined to questions presented

require reversal. by the so-called bill of exceptions. As the stated that "Vennie fainted” when she saw that

In prosecution for assault, that witness bill of exceptions is now stricken, for the her father was cut, while irrelevant, was not reason stated, there is nothing before the sufficiently important to require a reversal. court for review.

The judgment appealed from will stand af- 8. Criminal law C419, 420(1)-Advice given firmed.

defendant by justice of peace before assault Afirmed.

held hearsay and inadmissible.

Advice given defendant by justice of peace SAMFORD, J., not sitting.

prior to his going to a house where he as. saulted another was hearsay, and inadmissible. 9. Criminal law e814(3), 829(1) - Charges

properly refused where not predicating jury's

finding on evidence and covered by court's SAMPSON V. STATE. (8 Div. 98.)

charges. (Court of Appeals of Alabama. May 20, 1924.) did not predicate jury's finding on the evidence,

In a prosecution for assault, charges which 1. Costs 315—Motion to retax costs incur. or which were fully covered by court's charges, red by state in summoning certain witnesses were properly refused. not examined held properly, overruled.

A motion to retax costs incurred by state 10. Criminal law @m815(5)-Charge omitting in summoning certain witnesses not examined

element of self-defense held properly refused. was properly overruled, in absence of evidence Defendant's requested charge that if he cut that witnesses were unnecessary or in excess injured party, who was threatening to kill him of statutory limits.

or to inflict upon him great bodily harm, he 2. Criminal law e 304(1)-No judicial notice would not be guilty of assault, was properly taken of purposes for which witnesses sumrefused, since it omitted the elements of self

defense. moned or that number is in excess of statute.

Courts cannot judicially know for what pur-11. Criminal law Om815(1), 829(1) - Charge poses witnesses are summoned or that such

predicating jury's conclusion on part of testiwitnesses are in excess of those allowed by

mony held properly refused. statute.

In a prosecution for assault, defendant's re3. Criminal law ww 695(2), 1170/2 (2) --Ques- quested charge, predicating jury's conclusion on

tion to injured party in assault with knife part of testimony and other charges which were held not erroneous, and in any event harm- covered by oral charge, were properly refused. less. In a prosecution for assault with a knife,

Appeal from Circuit Court, Marshall Counquestion to injured party whether "cut reached ty; W. W. Haralson, Judge. the cavity" was not erroneous, where objection was general, and in any event harmless where Lonnie Sampson was convicted of an asinjured party described wound, stating facts sault with a knife, and appeals. Affirmed. from which jury could draw its own conclusion,

Charge 2 refused to defendant is as folwithout answering question objected to.

lows: 4. Assault and battery 85–Injured party in prosecution for assault may testify as to his

(2) Gentlemen of the jury, if you find from age.

all the testimony in this case that the defendIn a prosecution for assault, court proper. ant was a tenant of Malone at the time of the ly permitted injured party to testify as to his difficulty, and he refused to allow the defendant

the use of a mule to finish his crops, and deage.

fendant went to the home of Malone on 5. Criminal law m404(4)-Clothes worn by peaceable mission to try and induce Malone to

injured party when assaulted admissible as let him have a inule for the purpose of finishres gesta.

ing his crop, and, while there, Malone cursed In a prosecution for assault, clothes worn and abused him and threatened to kill him or by injured party at time of injury were admis- | inflict upon him great bodily harm, and ran onsible as part of res gestæ.

i to him with a gun, and the defendant cut MaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 100 SO.-20

a

lone until Malone ceased his attack, then the vant. Andrews V. State, 134 Ala. 47, 32 defendant would not be guilty under the indict- South. 665; Kirby V. State, 151 Ala. 66, ment in this cause, and you should acquit him." 44 South. 38; Moore v. State, 16 Ala. App.

503, 79 South, 201. Orr & Killcrease, of Albertville, for appellant.

[7] The fact that “Vennie fainted" when Harwell G. Davis, Atty. Gen., and Lamar she saw that her father was cut, while irField, Asst. Atty. Gen., for the State.

relevant, is not of sufficient importance to justify a reversal of the case. In the trial

of hotly contested cases, isolated and irreleSAMFORD, J. [1, 2] Motion was made in vant remarks from witnesses sometimes this case to retax certain costs incurred by “creep in." Taken alone, there might be the state in having summoned certain wit- technical error, but, taken with the entire nesses not examined. Courts cannot judi- statement of the witness, are without prejucially know for what purposes witnesses are dicial injury. summoned, or that such witnesses were in [8, 9] The advice given defendant by Dowexcess of those allowed by statute. In a case dy, a justice of the peace, prior to the de of the character of the one on trial, the evi- fendant's going to the house where the diffidence sometimes takes a wide range, and the culty arose, was hearsay and inadmissible. solicitor in preparing the case for trial is Charges 1, 5, 8, and 9, if for no other reason, permitted to anticipate defenses within legiti- are bad and properly refused for the reason mate bounds. In the absence of evidence they do not predicate the finding of the jury convincing the court that the witnesses, on the evidence. Edwards v. State, 205 Ala. whose costs were sought to be retaxed, were 160, 87 South. 179. Besides, the court had unnecessary or in excess of the statutory fully covered every principle of law set out limits, the motion to retax was properly in these charges. overruled. Barnard v. State, 71 Ala. 15.

[10] Charge 2 omits the elements of self[3] While the injured party was being ex. defense. amined as a witness, the solicitor asked this

[11] Charge 7 predicates the conclusion or question: “Did the cut reach the cavity?" the jury on a part of the testimony, and The objection to this was general, not stat- charges 6 and 4 are covered by the oral ing any grounds. The question was not sub

charge. ject to a general objection. Moreover, the

We find no error in the record, and the answer could not have been prejudicial, judgment is affirmed. as the witness immediately described the

Affirmed. wound, stating the facts, from which the Jury could draw its own conclusion, without answering the question objected to.

[4] The court properly permitted the injured party to testify as to his age. Ander- LEACH V. STATE. (8 Div. 160.) son v. State, 209 Ala. 36, 95 South. 171.

[5] The clothes worn by the injured party (Court of Appeals of Alabama. May 20, at the time of the injury are admissible as

1924.) part of the res gesta.

[6] On cross-examination of the injured Criminal law Om 201-Prosecution for viola. party, defendant's counsel asked several

tion of ordinance no bar to prosecution for questions seeking to prove that just prior

violation of state law. to the time the alleged attack was made,

Under Acts 1915, p. 724, a prosecution for the witness was sitting in his house “brood- violation of an ordinance is not a bar to a subing" over a difficulty had between witness sequent prosecution for violation of a state

law, though the same act constituted the of. and defendant the "evening before." The

fenge. court sustained the state's objections to these questions, and defendant excepted. At that time there was no evidence of an overt act

Appeal from County Court, Morgan Coun. on the part of the witness, and no semblance ty; W. T. Lowe, Judge. of testimony as to self-defense on the part Lula Leach was convicted of having in her of defendant. Under the facts as they ap- possession prohibited liquor, and she appeared, the action of defendant in assault-peals. Affirmed. ing witness was without any provocation.

Harwell G. Davis, Atty. Gen., for the After the defendant had introduced evidence

State. tending to show self-defense, or if counsel had informed the court as to what he expected the evidence later to develop, the FOSTER, J. The appellant was convicted testimony called for might have been rele- for having in her possession prohibited liqvant; but in the light of the testimony then uors. developed, the mental attitude of the witness The defendant filed a plea of autrefois con. towards the defendant was in no way rele- / vict as follows:

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(100 So.) "Comes the defendant in the above-styled cause and for plea says: That the state ought BUSH V. STATE. (4 Div. 790.), Dot to further prosecute this charge or indictment against her because of a prosecution (Court of Appeals of Alabama. April 3, 1923. begun by affidavit against her on the 3d day of Rehearing Granted July 10, 1923. RehearApril, 1923, in the mayor's court, or recorder's ing Denied Nov. 13, 1923. Reversed after court, of the city of Albany, in which this de

Mandate April 8, 1924. Rehearing Denied fendant was charged with the violation of the

April 22, 1924.) prohibition law, in that she did have in her possession, in the corporate limits of the city 1, Criminal law 1043(2)-General objecof Albany, county of Morgan, and state of Ala

tion held insufficient to authorize revision of bama spirituous, vinous, or malt liquors, con

trial court's rulings. trary to law, and that on, to wit, on the 4th day of April, 1923, this defendant was put upon

Under Circuit Court Rule 33 (Code 1907, trial by said court for said offense, and was p. 1527), general objection to rulings on ad duly convicted by said court of said offense and mission and exclusion of evidence is insuffi. fined fifty dollars, and one dollar and sixty cient to authorize revision of court's action in cents costs, which fine and costs were prompt

rulings. ly paid, which this defendant alleges was based 2. Criminal law ew1043(2)-Formal objection upon and is of the same matters and transac

to rulings sufficient to require revision of tions as is alleged in this prosecution or in

testimony patently irrelevant. dictment of which she is charged, and defendant alleges that said mayor, in trying this de

If testimony offered was manifestly irrel. fendant as aforesaid, had concurrent jurisdic-evant, formal objection would be sufficient to tion with this court to try said offense, and in authorize revision. the trial of the same was acting as a judicial 3. Criminal law 757(6), 811(5)-Refusal of officer of the state of Alabama in such trial,

charge singling out part of testimony held all of which the defendant is ready to verify,

proper. and prays judgment that she be discharged as to the present prosecution."

If prosecutrix had been impeached, it was jury's duty to weigh evidence given by her in

light of that fact, and, if they concluded it was The state joined issue on said plea and untrue, they could disregard it; but it was filed a replication as follows:

not error to refuse requested charge that, if

they believed testimony of named witnesses, “Comes the state of Alabama and joins issue they would wholly disregard all testimony of on said plea, and for further answer to said prosecutrix, as court could not so charge as plea says: Defendant was tried by W. A. matter of law, and, moreover, it singled out Brittian as mayor of the city of Albany for part of testimony. violating Ordinance 349 of the Penal Code of the city of Albany and not tried by W. A. Brit. 4. Criminal law, €ww757 (6)-Charges held in

vasive of province of jury. tian as ex officio justice of the peace or recorder for violating the state law.”

Instructions that, if jury believed testimony, prosecutrix's character for truth and veracity

was bad and to consider such fact in weighing The evidence showed without conflict that credibility of her evidence, and that they must the defendant was arrested on a warrant is believe her worthy of belief before they could sued by the mayor of the city of Albany on convict, were properly refused as invasive of

province of jury. complaint charging the violation of Ordinance No. 349 of the city of Albany, and 5. Criminal law 0.757(1), 811(5)-Charge that the defendant was tried by the mayor singling out evidence and invading jury's and convicted for violation of the city ordi

province properly refused. nance, and not for a violation of the state Charge that, if jury believed from testilaw.

mony that prosecutrix was unworthy of be

lief, then they must acquit, was properly reA prosecution in the mayor's court for a fused as singling out evidence and invasive of violation of a city ordinance is not a bar to jury's province. a subsequent prosecution in the state court for the violation of a state law, although the 6. Criminal law eww829(1)-Refusal of charge

covered by charges given not error. same act constituted the offense. Acts 1915, p. 724; Hendrix v. State, 18 Ala. App. 470, Rere fairly and substantially covered by court's

It was not error to refuse charges which 93 South. 223; Bell v. State, 16 Ala. App. oral charge, or given charges. 36, 75 South. 181; Ex parte Bell, 200 Ala. 364, 76 South. 1.

7. Criminal law 814(3)-Refusal of ab. There was no conflict in the evidence. The stract charge not error. court properly gave the affirmative charge Where there was no testimony showing, or for the state.

tending show, consent by prosecutrix, We find no error in the record, and the charge, that if jury believed from testimony judgment of the lower court is affirmed.

that prosecutrix consented that defendant have

sexual intercourse with her, they must acquit, Affirmed.

was abstract and was properly refused. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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