Chapman v. Holding

STONE, J. The rulings on demurrer not being shown in the judgment of the court, we cannot consider them.—Petty v. Dill, 53 Ala. 641. 2. The husbands of two of the plaintiffs were called to testify for them. Their testimony did not at all relate to any communications made by one to the other; and it did not tend to disclose any fact or circumstance, connected in the least with that sacred confidence between husband and wife, which should always be respected. We think the objection to the competency of the witnesses was not well taken.—Robinson v. Robinson, 44 Ala. 227; Lang v. Waters, 47 Ala. 624. 3. The complaint describes the lands sued for, witli minute particularity, alike as to boundaries and quantity. The plea of not guilty was an admission of defendant’s possession; and there was no disclaimer as to any pari The issues found all go to the entire premises sued for. The description in the complaint, and the issues formed upon it, sufficiently describe the property, to prevent mistakes in its location and identification. The language of the verdict was : “ We, the jury, find for the plaintiff, on the issues joined.” The issues joined were, an affirmation by the plaintiffs that the premises sued for — the premises as described — were the property of plaintiffs, wrongfully possessed and held by the defendant; and an admission by defendant that he was in possession, with a denial of plaintiffs’ ownership and right of recovery. Finding the issues in favor of plaintiff is as definite and determinate, as if the verdict had affirmed that the jury found for the plaintiff the lands described in the complaint ; and it was a finding of all that was claimed in the complaint, except those parts which the verdict affirmed was not so found.—See Hamner v. Eddins, 3 Stew. 192; Sawyer v. Fitts, 2 Por. 9; S. C., 4 Stew. & Por. 365, 370; Hines v. Greenlee, 3 Ala. 73. It is only when the jury find for the plaintiff, less than the quantity sued for, that the verdict must describe the part of the premises recovered. We think the verdict sufficient. — Code of 1876, § 2967. 4. There was no exception to any part of the charge to the jury, nor to the several blank forms of verdict furnished by the court, so varied as to present every conceivable form of their finding. If this had been excepted to, we can perceive nothing in it which would have misled the jury. The custom, sanctioned alike by principle and practice, has long prevailed, of instructing juries as to the proper forms of their verdicts. If such instruction, orally given, be free from error, 'it is difficult to conceive how reducing it to [534] writing can vitiate it. We think such practice is not only free from objection, but that it is commendable. 5. The only remaining questions are those which arise out of motions made after verdict; first, for judgment for the defendant, veredicto non obstante; and, second, to arrest the judgment and set aside the verdict, because the latter is inconsistent in its findings, and repugnant to itself. An insuperable obstacle to the maintenance of either of these propositions is found in the fact, that there is nothing incompatible or repugnant in the verdict of the jury, when considered by itself, or taken in connection with the pleadings. Counsel for the motion perceived this difficulty, and sought to obviate it, by bringing before the court, on oyer, not only the process by which the suit was commenced, but part of the documentary evidence by which plantiffs proved their title. They have shown great industry in search of authorities to sustain their views, and, among others, have cited the following: Snyder v. Robinson, 35 Ind. 311; S. C., 9 Amer. Rep. 738; Dyer v. Greene, 23 Me. 464; Brown v. Ferguson, 4 Leigh, 37; Bellows v. H. & A. Bank, 2 Mason, 31; Sullenberger v. Gest, 14 Ohio, 204; Smith v. Walker, 1 Wash. Va. 135; Shanks v. Albert, 47 Ind. 461; Harbaugh v. People, ex rel., 33 Mich. 241; Stearns v. Barrett, 1 Mason, 153; Brown v. Ralston, 4 Rand. 504, 518. None of these cases sustain the view contended for. In the case of Brown v. Ralston, the court drew the proper distinction, between motions and orders thereon, in arrest of judgment, and orders granting new trials. It was there said : “ They differ in this — that the venire facias is the ancient proceeding of the common law; the new trial, a modern invention to mitigate the severity of the proceeding by attaint. New trials are generally granted, where a general verdict is found ; a venire de novo, upon a special verdict. The most material difference between them is, that a venire must be granted upon matter appearing upon the record; but a new trial may be granted upon things out of it.” In the present case, the pleadings and verdict show a compíete right of recovery. The verdict is general — not a special finding of facts. It is only by bringing before the court a part of the evidence, that’ it is claimed that the verdict finds inconsistent facts ; and on the strength of which, the motions above stated were pressed. It furnishes no ground for a judgment for defendant, veredicto non obstante; and it furnishes no ground for arrest of judgment proper, either in the Circuit Court, or this court. The most'that can be affirmed of it is, that it afforded matter for consideration on a motion for a new trial. From circuit rulings on such [535] a motion, no appeal lies to this court. — 2 Brick. Dig. 276, §§ 1, 2, 3. ■ Note by Reporter. — On a subsequent day of the term, the appellant’s counsel having filed an application for a rehearing (on points shown by their brief, ante), the following opinion was delivered. We find no error in the record, and the judgment of the Circuit Court is affirmed. STONE, J. A very ingenious argument has been made, tending to show that the second skeleton form of verdict, submitted by the court to the jury, was calculated to mislead, and did mislead them, as shown by the verdict they rendered. The point of the argument is, that the deed to the Holdings, under which they claim title, shows on its face that they acquired title less than three years before the suit was brought; and inasmuch as the jury found in favor of defendant’s suggestion, that “ he and those whose possession he had, for three years next before the commencement of the suit, had had adverse possession thereof,” this shows that plaintiffs were not entitled to recover; because, when the Holdings purchased, the property was adversely held by another, which is a complete defense to their action. — Bernstein v. Humes, at the present term. In other words, the argument is that, under the testimony given, this charge could not properly be given ; but that the jury should have been instructed, if they found there had been three years adverse possession, then they must find for the defendant. If this question was properly presented by the record, we would hold that the court should have charged the jury, that if the property sued for was adversely held and occupied, at the time plaintiffs acquired their title, then their verdict should be for the defendant.—Humes v. Bernstein, supra. The record is silent as to whether this charge was or was not given. We are bound to presume the Circuit Court correctly instructed the jury in matters of law, unless the record affirmatively shows the contrary.—1 Brick. Dig. 345, § 143; Ib. 781, §§ 118, 120; Ib. 782, § 125; Ib. 783, §§ 141, 143, 146, 147; 148, 149; Ib. 784, §§ 150, 151, 154, 155. If the court correctly charged the jury, on matters of abstract law, and there were tendencies of the evidence which rendered it proper that other and explanatory charges should be given, then it was the duty of the counsel to direct the attention of the court to the subject, and ask proper explanatory charges.—Dave v. The State, 22 Ala. 23; Farley v. Smith, 39 Ala. 38; Wolfe v. Parham, 18 Ala. 441; 1 Brick. Dig. 344, [536] § 129. Assuming that the court correctly charged the jury, on all questions, not shown to the contrary by the record, the only inference is, that the jury must have disregarded the charge of the court, as to the effect of adverse possession on plaintiffs’ right of recovery. Such error can only be redressed by granting a new trial; and of such motion, this court possesses no revisory jurisdiction.- — ■2 Brick. Dig. 276, § 1. What we have said above shows, that if there had been a distinct and separate exception to the form of verdict numbered 2, given by the court, it would scarcely furnish ground for a reversal. But there are two obstacles in the way of considering the question on the present record. The language of the bill of exceptions is: £‘ Immediately before the jury retired to consider of their verdict, the court gave them in charge (against the objection of defendant) the following three forms of verdict, instructing them that they were proper forms of verdicts in such a case,” etc. Forms 1 and 3 are free from objection, under the evidence in the record. Form 2 is alone objected to. It is doubtful if the words, ££ against the objection of defendant,” are sufficient to reserve an exception.—Gager v. Doe, ex dem., 29 Ala. 341. But an exception, to receive consideration, must point out — direct the attention of the court to — the specific ruling complained of.—Johnson v. McGehee, 1 Ala. 186. And a general exception to a mass of evidence, some portion of which is legal, or to a lengthy charge, or several charges, some separable parts of which assert correct legal propositions, is no ground for reversal—Rives v. McLosky, 5 Stew. & Por. 330; 1 Brick. Dig. 250, §§ 111, 113; Holland v. Barnes, 53 Ala. 83; Owens v. The State, 52 Ala. 400; Cohen v. State, 50 Ala. 108. Conceding that the exception in this case was sufficiently reserved, it is taken to the entire three forms of verdict, two of which are unquestionably correct, under any phase of the testimony. The exception should have designated the part of the charge objected to, so that the court could pronounce on the direct question, by correcting or modifying its rulings or not, as its quickened attention might suggest. The objection in this case was only calculated to create the impression, that, in the opinion of counsel, the court erred in giving to the jury skeleton forms of verdict, to meet any conclusion they might arrive at, in weighing the evidence. In our first opinion we showed that the Circuit Court did not err in this. The application for a rehearing is overruled.