Turnley v. Hanna , 82 Ala. 139 ( 1886 )

SOMERVILLE, J.

— 1. The deposition of Henrietta Ellis was properly excluded from being admitted in evidence on the trial of this cause. It was not taken to be used in this suit, which, is one of forcible entry and detainer, brought by the appellant, Turnley, against the appellees, Hanna and Holton; but to be used in another and different suit in the Chancery Court, in which Hanna was the complainant, and Turnley and one Collins the defendants, relating, it is true, to the same subject-matter. Holton was not a party to the chancery cause in which the testimony was taken. He had, therefore, no opportunity to cross-examine the witness, and should not for this reason be precluded by it, admitting that in other respects it was free from objection. The admissibility of evidence of this kind turns upon the right to cross-examine, rather than upon the precise nominal identity of all the parties; but no one objecting should be bound by it in a second suit, who was not a party to the first suit in which the evidence was taken. — -1 Greenl. Ev. (14th ed.), §§ 164, 553.

2. The deeds from Brown and Patton to Hanna were properly admitted in evidence, to show the extent of Hanna’s possession claimed to the premises in controversy. The court expressly limited the operation of the deeds to this purpose, and thereby excluded them, by implication, from being considered to raise a controversy of title. — Bohannon v. State, 73 Ala. 47; Brady v. Huff, 75 Ala. 80.

3. The declaration of Stephen Brown, as testified to by the defendant Holton, was made while he was in possession of the premises in controversy, and tended to show that he was holding them in his own right, and not as the tenant or agent of another. They were, therefore, properly explanatory of his possession ; and such possession being pertinent to the issues of this case, the declarations were relevant and competent evidence. — Humes v. O’Bryan, 74 Ala. 71; 1 Greenl. Ev. § 109. The plaintiff should have requested instructions from the court, limiting the effect of this evidence, if be apprehended any injury from its bearing on the merits of the title.

4. It was competent for the witness Brown to testify, that he controlled the lands in controversy for his brother, Stephen W. Brown, while the latter was absent in the war. This was a conclusion of fact, or, as often called, a collective fact, involving the fact of management by authority. Nelson v. Iverson, 19 Ala. 95; Elliott v. Stocks, 67 Ala. 290. The facts, upon which the conclusion was founded, could have been elicited by cross-examination by the opposite party.

5. The court did not err in excluding the part of the witness Jordan’s testimony, in answer to the first rebutting interrogatory, which was objected to by the defendants. While it was competent for the witness to state that the defendant Hanna had a heavy cane in his hand, or any other relevant fact, he could not testify that he (Hanna) “seemed disposed to resist if any effort was made to put him out.” This was clearly matter of opinion, and not a conclusion of fact such as could be stated collectively, without successful objection.

The other assignments of error are not well taken, and the judgment must be affirmed.