Calumet Coal Co. v. Cordova C. L. & I. Co.

40 So. 390, 145 Ala. 578, 1906 Ala. LEXIS 483

• Court: Supreme Court of Alabama
• Decided: February 17, 1906
• Status: Published

Opinion

SIMPSON, J.

This was a statutory action of ejectment, in which the defendant entered a disclaimer as to all of the land sued for, and the only exception made is to the concluding clause of the judgment of the court in the following words, to-wit: “And that the plaintiff for want of a plea by defendant is entitled to and has judgment against the defendant as to the title of the land sued for in this cause, to-wit; S. W. 1-4 of N. W. 1-4, Section 28, T. 14s of Range 7w. of Huntsville, Alabama, principal meridian, in Walker county, Alabama.”

The action of ejectment is an action for the-possession of lands, and not an action to quiet title, and no judgment can be rendered for the plaintiff save for the possession of the land, for the value of its use and for costs.

When the defendant disclaims possession, the plaintiff has the election to take issue, and on proving that defendant was in possession at the commencement of the suit, to recover possession with costs, or, on the other hand, to decline to take issue on it, in which case the defendant has no plea to file, and recovers costs against the plaintiff; the plaintiff being entitled to take judgment, as for want of a plea, without damages and costs. —Morris v. Bebee, 54 Ala. 306 ; Bailey v. Selden, 124 Ala. 403, 406 ; Webb v. Reynolds, 139 Ala. 398 (36 So. Rep. 15) ; McQueen v. Lampley, 74 Ala. 408.

The judgment of the court is reversed, and such a judgment will be here rendered as should have been rendered by the court below.

Reversed and rendered.

Haralson, Dowdell, Anderson, and Denson, JJ., concur.