Zion Star Baptist Church v. Hart

152 So. 44, 228 Ala. 24, 1934 Ala. LEXIS 104

• Court: Supreme Court of Alabama
• Decided: January 11, 1934
• Docket: 6 Div. 434.
• Status: Published

Opinion

ANDERSON, Chief Justice.

This is an action of unlawful detain-er under section S001 of the Code of 1923, and which, among other things, provides that a demand in writing must be made for the premises after a termination of the possessory interest. The making of this written demand is essential as a condition precedent to a recovery, and proof of same should be by the best evidence. Littleton v. Clayton, 77 Ala. 571; Bates v. Ridgeway, 48 Ala. 611; Dumas v. Hunter, 30 Ala. 75. The plaintiff attempted to prove the demand by stating he sent it by a colored boy in his office, but there was no proof that the same was delivered. Nor was any predicate laid for secondary evidence ; that is, no demand was made to produce the original. Again, while the plaintiff claimed to have kept a copy of the demand, it was never introduced, so the most that the plaintiff showed was his oral testimony that he made a demand in writing and sent it by hand by a colored boy. The trial court erred in not sustaining the defendant’s objection to the plaintiff’s testimony as to the demand.

As we understand, this was not a suit upon an instrument in writing so as to make the same admissible in evidence in the absence of a sworn plea denying the execution of same. It is an action for the recovery of the premises, and the trial court erred in admitting the rental contract in evidence without proper proof of the execution of same over the objection of the defendant.

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

Reversed and remanded.

GARDNER, BOULDIN, and FOSTER, JJ., concur.