Stokes v. Cottrell , 2010 Ala. LEXIS 62 ( 2010 )

SMITH, Justice

(concurring specially in case no. 1071195 and concurring in part and concurring in the result in case no. 1071204).

I concur with Part I of the main opinion. As to Part II of the main opinion, I agree that the writ should be quashed.

Justice Murdock’s special writing demonstrates that if a plaintiffs complaint alleges actual, peaceable possession under § 6-6-560, Ala.Code 1975, a subsequent failure by the plaintiff to prove actual, peaceable possession does not mean that the circuit court never had jurisdiction over the subject matter or the res. Rather, a failure to prove actual, peaceable possession means that the plaintiff has not demonstrated that she is entitled to relief under § 6-6-560.

The question whether a plaintiff has actual, peaceable possession likely will be contested and often will be intertwined with issues that will need to be resolved by a trial on the merits. However, in such a circumstance, as Justice Murdock notes in his special writing, “[t]he circuit court does not make the decision whether the element of peaceable possession exists in order to determine whether it has subject-matter jurisdiction over this type of case, but does so because it has subject-matter jurisdiction over this type of case.” 58 So.3d at 157.