Hambaugh v. McGraw

96 So. 571, 209 Ala. 541, 1922 Ala. LEXIS 293

Opinions

ANDERSON, C. J.

[1] Section 3841 of the Code of 1907 reads as follows:

“In an action of ejectment, or in an action in the nature of an action of ejectment, the defendant may, by notice in writing to the plaintiff or his attorney, not less than ten days before the trial of the cause, demand an abstract in writing of the title or titles on which he will rely for a recovery, and the plaintiff must be confined to the proof of such title or titles; and when such abstract is demanded by -the defendant, he must tender, if demanded by the plaintiff or his attorney, five days before the trial, an abstract of the title or titles on which he will rely for defense, and on trial shall be confined to such title or titles.”

It should be observed that this provision fixes no exact time for furnishing the abstract, but evidently contemplates that it should be furnished before entering into the trial, as it is intended to inform the opposite party as to what line of title will be relied upon — certainly before the introduction 'of evidence by the party whose duty it is to furnish the abstract.

There is no penalty fixed for a failure to produce the abstract, the only one being that the proof must be confined to the title disclosed by the abstract furnished, though the trial court no doubt has the inherent power to enforce a compliance with the demand before compelling the parties to go to trial, upon a request from the parry demanding same, who should make a showing that the demand had been made and not complied with, and to continue or delay the cause until the same is furnished upon terms, and to render judgment or nonsuit for a default after the time fixed by the court for the production.

[2, 3] A party, however, cannot sit quietly by and enter into the trial, without first ascertaining if the abstract is on hand or seeking an inspection of same, and rely upon springing a surprise upon his adversary by objecting to all of his proof because no abstract had been previously furnished. These appellees, by announcing ready and. entering into the trial without ascertaining that the abstract was on hand or seeking an inspection of same, waived the failure to tender same before the trial was entered upon. Hoyle v. Mann, 144 Ala. 516, 41 South. 835. Having waived the failure to produce the abstract before the trial was begun, the defendants should have accepted samé when offered, which was immediately after the attention of the court and the then counsel for plaintiff, former counsel having died, had been called to the demand, and immediately after plaintiff offered his first piece of evidence. If the defendants wanted time to examine the abstract, or if the title thereby disclosed took them by surprise, they should have appealed to the trial court for a proper suspension or delay of the trial. It does not appear from this record, however, that this plaintiff was in default; presumptively, the abstract was in court when the trial was begun, though not tendered to the defendants, as the record shows that the document, of which Exhibit A is a copy, was • offered to defendants’ counsel when attention was called to the demand.

We think that the trial court erred in not permitting the plaintiff to offer proof of his title simply because the abstract had not been actually tendered to defendants’ counsel before the trial was begun.

The judgment of the circuit court is reversed, and the cause remanded.

Reversed and remanded.

McClellan, thomas, and miller, JJ., concur.'