Coltart v. Moore , 79 Ala. 361 ( 1885 )

STONE, C. J.

The appellees, Moore and others, brought a statutory real action for the recovery of a lot of land in the city of Huntsville, described in the complaint by metes and bounds. The action was commenced in 1876, against Reagan, and Mrs. Ooltart was, at her instance, made defendant as the asserted owner of the lot. .She pleaded “ not guilty,” and suggested upon the record that “ she, and those whose possession she has, for three years next before the commencement of this suit, have had adverse possession of the property sued for, and during said adverse possession she and those whose possession she has have put upon said property permanent improvements, of the value of two thousand dollars.” At the December term, 1878, the case came on to be tried on the issues stated above, and the judgment-entry, after stating the organization of the jury, proceeds to affirm that they, “on their oaths, do say, ‘ We, the jury, find the issues in favor of the plaintiffs, and allow the defendants all rents accrued, and seven hundred and seventy-four dollars over the rents for improvements, and that the suggestion of three years adverse possession and improvements is true.’ It is further ordered by the court, that the plaintiffs have and recover judgment against the defendants, for the costs in this behalf expended, for which let execution issue.” This is, in substauce, the whole of the judgment-entry.

The proceedings in this suit were under the Code of 1876, chap. 5, title 1, part 3, commencing with section 2948. The particular sections which deserve consideration in this case are 2951 to 2954, inclusive. It will be seen that the judgment is very imperfect. It not only fails to describe the land recovered, but it fails to render judgment for the land. The judgment might have been corrected, and made full in this particular, by reference to the complaint, which contains a sufficient description. There is, however, a serious defect, found alike in the verdict and in the judgment, for the correction of which the record furnishes us no data. The verdict, after ascertaining that the suggestion of three years adverse possession was true, that the value of the permanent improvements exceeded the amount of the rents, and the amount of the excess, should have gone farther, and found - “the value of the lands and tenements, . . not including the increased value thereof by reason of the improvements.”- — Code, § 2952. In the absence of such finding, the truth of the suggestion of adverse possession and improvements being first found, the verdict did not respond to all the issues, and a proper judgment,- doing compíete justice between the parties, could not be rendered. We are unable to perceive how a judgment, pursuing the verdict, could have been executed, unless the plaintiff voluntarily paid the excess of improvements over the rents. The statute requires a stay of execution for one year, and only for one year, “unless the plaintiff, or his legal representative, pay the defendant, or deposit with the clerk for him, the excess of the assessed value of the improvements over the value of the use and occupation.” — Code, § 2953. If he fail to pay such excess, then the defendant is not without remedy. If. the payment be not made within the year, the defendant has other three months within which to pay the assessed value of the land, and doing so, the plaintiff is forever barred of his writ of possession. — Code, § 2954. How can this payment be made, if there has been no assessment of value?—See Gager v. Gordon, 29 Ala. 341.

We have no doubt that, when the verdict was received, the Circuit Court should have sent the jury back, that they might inquire of, and respond to the question of the value of the lands, irrespective of the improvements. We have as little doubt that, if he had refused to do so, and had rendered judgment on the verdict, that judgment would have been reversed on appeal to this court. Nor do we doubt the duty of the court to set aside the verdict, and award a venire de novo, if it had been moved for during the term at which the verdict was rendered. Neither of these lines of conduct was pursued in this case.

At the next term — June, 1879 — the plaintiffs, Moore and others, moved to set aside the verdict of the jury, and reinstate the case upon the trial docket, for the following (among other) reasons: 1st. The same is void upon its face. 3d. It finds only a part of the issues. This motion w7as granted by the court. No further Orders in the cause appear in the record before us, until the June term, 1882. At that term appears the following entry : “Came parties by their attorneys, and death of Fannie Thompson, a plaintiff in this cause, is suggested ; and ordered bj7 the court, that this cause be, and is hereby continued.” At the summer term — August, 1883 — -the following entry was made: “Came parties, by their attorneys, and plaintiffs allowed to substitute complaint. Substituted complaint filed. Marriage of Fannie B. Moore to John A. Thompson before her death suggested, and leave to revive her interest in suit in name of John A. Thompson.” No other orders appear in the transcript, between June, 1879, and February, 1884.

At the February sitting, 1884, the plaintiffs filed a petition, and made a motion in the Circuit Court, to vacate and set aside said order of June, 1879, to remit the cause to its status before that order was made, and to enter up, nunc pro tunc, the proper judgment of the court on the verdict of the jury rendered in December, 1878. That motion was resisted, but was in all respects granted by the court. The judgment is in all things formal, except that neither the verdict nor the judgment ascertains the value of the land sued for. Exception was reserved to the ruling of the court, and the same is here assigned as error.

For appellee it is contended, that the order of June, 1879, setting aside the .verdict and judgment of December, 1878, being made at a subsequent.term, the court was without jurisdiction in the premises, and consequently the vacating order was a nullity. From this postulate the conclusion is claimed, that the court did not err in the order of February, 1884 ; for all courts may vacate and set aside void orders previously made by them. The position is sound, if the conditions justify its application.—Jones v. Brooks, 30 Ala. 588. We consider it unnecessary to decide this question. Conceding that the verdict and judgment of December, 1878, were final and conclusive, and beyond all power of revocation or modification by that court at a subsequent term; the court, nevertheless, did set the verdict and judgment aside, and did restore the case to the docket. At that stage, the regularity of that order might have been tested. It was not done. At subsequent terms, counsel appeared without objection, and orders were asked and granted, as upon a pending case in court; and this continued for four years. This was a waiver of all irregularity in the order of June, 1879, if there was such irregularity.—Byrd v. McDaniel, 26 Ala. 582; Johnson v. Bell, 71 Ala. 258; St. Clair v. Caldwell, 72 Ala. 527.

The judgment nunc pro tunc, and the orders made February, 1884, are reversed and annulled, and the cause restored to the docket as an undecided cause.

Reversed and remanded.