Cofer v. Schening

98 Ala. 338

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

STONE, C. J.

Tbe statute (Code, § 2759), authorizing a plaintiff to suffer a non-suit, and by bill of exceptions reserve adverse rulings of tbe trial court, for revision in this court, has been uniformly construed as restricting such power to those rulings and decisions, which are tbe proper matter of a bill of exceptions, and which without such bill, can not properly appear of record. It does not extend to rulings and decisions on demurrers to pleadings, which of necessity form part of tbe record.—3 Brick. Dig. 678, 357. Tbe assignments of error which refer to tbe rulings of tbe court on demurrers to tbe pleadings, are of consequence, not now before us for revision.

It may be tbat tbe certificate of tbe register authenticating tbe transcript of tbe record from tbe Chancery Court, is not very formal, or technical. Fairly and reasonably construed, it affirms tbat tbe transcript contains a full, true and correct copy of all tbe proceedings bad in tbe court of chancery, and all tbe orders and decrees rendered in tbe particular cause. This satisfied all tbe requirements of tbe law, and tbe objection to tbe introduction in evidence of tbe transcript was properly overruled.—Cargile v. Ragan, 65 Ala. 287; Clements v. Pearce, 63 Ala. 286.

Tbe act establishing tbe Criminal Court of Jefferson county, in express words, confers on tbe judge of tbe court, tbe like power and authority to issue writs of injunction, which is conferred upon tbe judges of tbe Circuit Courts. (Pam. Acts, 1886-7, p. 836, §5.) Similar statutes conferring such authority and power on inferior courts, limited in general jurisdiction to particular counties, have been construed as conferring the power and authority to issue such writs, or grant orders for tbe issue thereof, returnable into any court of tbe State, having jurisdiction.—E. & W. R. R. Co. v. E. T., V. & G. R. R. Co., 75 Ala. 276. If in tbe present case, an inquiry into tbe power and authority of tbe judge of tbe Criminal Court to grant tbe order for tbe issue of tbe injunction could be pertinent, there can be no doubt of its existence.

A plaintiff in ejectment, or in tbe corresponding statutory real action, can not recover, unless at tbe commencement of tbe action be has a legal title, entitling him to tbe immediate possession. Title and right of possession subsequently acquired will not authorize a recovery.—2 Brick. Big. 324, § 27. At tbe commencement of tbe suit tbe plaintiff bad the legal title, but bad not tbe right of possession. Tbat right bad been intercepted by tbe temporary injunction tbe defendant bad obtained from tbe court of chancery. "While tbe injunction remained of force, tbe right of entry and of possession could not be asserted elsewhere than in the court of chancery, without tbe order or decree of that court. An entry on the premises by tbe plaintiff, and possession of them, would have been a violation of tbe injunction, a contempt of tbe process and jurisdiction of tbe court, to tbe commission of which other courts should not aid or contribute. Tbe subsequent dissolution of tbe injunction and dismissal of tbe bill, was not retroactive. Tbe rule of tbe common law is inflexible, tbat tbe plaintiff in ejectment must recover upon tbe state of facts existing at tbe commencement of tbe suit. . Tbe subsequent occurrence of necessary facts, will not support tbe suit. If sucb facts bad existed at tbe commencement of tbe suit, tbe defendant might bave yielded to them, avoiding litigation.—Goodman v. Winter, 64 Ala. 410. Tbe Circuit Court did not err in tbe charge given, and tbe judgment must be affirmed.

Affirmed.