Stoudenmire v. DeBardelaben , 85 Ala. 85 ( 1887 )

CLOPTON, J.

These are cross appeals. J. D. Stoudenmire, who is complainant in the bill, makes a preliminary motion to strike out the assignments of error relating to the decree of February 8, 1886, assigned by defendant. The contestation on the motion is: complainant insists that the' decree, being final, and having been affirmed at a former term on appeal by the defendant, is beyond the power of the court to open and reconsider on this appeal; and defendant contends, that under the statute, it is the duty of the court to declare the law of the case without regard to any former ruling, or to the time when such ruling was made. The decree of February, 1886, affirmed that complainant was entitled to the equity he seeks by the bill; it settled the equities between the parties, and there only remained a reference by the register for the ascertainment of the amount. By all our decisions, the decree was final, and would support an appeal. — Garner v. Prewitt, 32 Ala. 13; Jones v. Wilson, 54 Ala. 50. More than one year bad elapsed after its rendition before tbe present appeal was sned out; an appeal from tbe decree was barred. Under our uniform ruling and practice in sucb cases, tbe assignments predicated on alleged error in tbe decree of February, 1886, must be stricken out, unless tbe statute invoked operates the abrogation or modification of sucb rule, in cases where there has been a ruling on appeal from a final decree, and tbe case is again brought before tbe court by a subsequent appeal from tbe decree rendered on ulterior proceedings, and for tbe adjustment of incidental or dependent matters. — Bradford v. Bradley, 37 Ala. 453; May v. Green, 75 Ala. 162.

Section 683a of Code, 1886, declares: “Tbe Supreme Court, in deciding each case, when there is a conflict between its existing opinion and any former ruling in tbe case, must be governed by what, in its opinion at that time, is law, without any regard to sucb former ruling of tbe law by it.” Tbe manifest purpose of tbe statute is to abrogate tbe preexisting rule, that tbe principles decided and tbe rulings made on appeal, however erroneous, were tbe law of tbe particular case, and governed tbe inferior court in all subsequent proceedings, and tbe appellate court on a subsequent appeal in tbe same case. — Moulton v. Reid, 54 Ala. 320. But this is the full scope and operation of tbe statute, when construed in connection with other statutes regulating appeal's. It was not intended to repeal, pro tanto, tbe statute of limitations restricting tbe right of appeal; nor to indirectly give tbe benefit of appeal, when tbe right is barred, by authorizing assignments of error purely retrospective in their effect and relation; nor to abrogate tbe well established rule, that a judgment of affirmance is beyond tbe power of this court after tbe expiration of tbe term when rendered, unless suspended by a proper and seasonable application for rehearing. By its terms, tbe statute only contemplated a case properly brought before tbe court for decision by appeal, or other appropriate supervisory proceeding; and only has operation when tbe case thus brought before tbe court a second time involves tbe same principles and questions decided on tbe former appeal, and devolves on tbe court tbe necessity and duty to reconsider and affirm or overrule its former rulings. Tbe defendant appealed from tbe decree of February, 1886, and it was affirmed by this court May 10, 1887. Tbe statute was not designed to impose on tbe court tbe duty, ex mero motu, to revise its former rulings, when tbe same rulings are not presented nor involved in tbe second appeal; and bas no operation wben a final decree on appeal bas been affirmed, tbe term of tbe court bas expired, and more tban one year bas elapsed from tbe rendition of sucb decree before tbe second appeal is sued out by tbe same appellant, from a subsequent decree, merely adjusting tbe matter of account, so as to enable tbe complainant to obtain tbe rights to wbicb be is entitled under tbe first decree, and wbicb does not alter or conflict witb tbe first decree. Tbe motion to strike out tbe assignments of errors must be granted.

Complainant seeks by tbe bill to compel defendant to account for waste committed by removing bouses from tbe land of bis wife, wbicb was lier statutory separate estate. Begarding, as we must, tbe first decree and its affirmance conclusive as to tbe liability of tbe defendant for tbe committed waste, tbe only question wbicb we can properly consider on tbis appeal, relates to tbe basis on wbicb tbe amount of compensation should be ascertained. "We do not propose to state or to attempt to formulate a rule applicable to all cases of waste, but merely to determine what is tbe proper rule of damages under the special circumstances of this case. At tbe time of the alleged waste, tbe land was tbe separate statutory estate of tbe wife of defendant, who was the mother of complainant. She was then living, and tbe waste was solely to her interest and estate in tbe land. Tbe fight of complainant to compensation is not founded on tbe ground, that the waste was an injury to any interest or estate wbicb be then owned in reversion or remainder, or by inheritance, but on tbe ground that be is tbe sole devisee of tbe real and personal property of bis mother, including tbe claim for waste, and that there is, no administration nor debts of tbe estate. DeBardelaben v. Stoudenmire, 82 Ala. 574. Tbe complainant succeeded to and claims in right of bis mother, and is only entitled to sucb damages as she could have recovered.

Sucb being tbe nature and extent of bis right, tbe availability of tbe land for use and occupation by tbe laborers on tbe river plantation of complainant, which was unsuitable for residence on account of unhealthiness, can not be regarded or estimated as an element of damage. Tbe river plantation was not owned by tbe mother of tbe complainant during her life-time, and tbe impairment of tbe availability of tbe land for sucb use by tbe laborers on tbe river plantation was not an injury to her interest or estate, except that tbe contiguity of tbe land to an unhealthy place may be a proper consider-

ation in estimating tbe market value of tbe land at tbe time of tbe removal of tbe bonses; bnt can not be otherwise taken into account in adjusting tbe compensation to be allowed complainant.

Tbe evidence shows that tbe bouses were removed with tbe consent, if not by direction, of tbe wife of defendant. It is. true tbe defendant has tbe benefit of tbe bouses, being located on bis land; but this does not, of itself, make him responsible for tbe value of tbe bouses, as for a conversion. If removed with her consent, there was no conversion as against tbe mother of complainant. Evidence of their value may be relevant, as affecting tbe inquiry in regard to the injury done to tbe land. But, should the value of tbe bouses be adopted as tbe rule of damages, tbe complainant would recover, as shown by tbe evidence and tbe report of tbe register, compensation for tbe waste committed by their removal; exceeding tbe entire value of tbe land with tbe bouses remaining on it; which would be unjust to defendant. Under tbe circumstances of tbe case, shown by tbe evidence, tbe complainant is not entitled to recover more than tbe actual damages suffered by tbe mother, which consists in tbe injury done tbe land — its diminution in value — by tbe removal of tbe houses; that is, tbe difference between tbe market value before and after tbe bouses were removed. — Chipman v. Hibberd, 6 Cal. 162; Ackey v. Hull, 7 Mich. 422; Clark v. Zeigler, 79 Ala. 346. Tbe register reported that tbe difference in value, with and without tbe bouses, is, according to tbe testimony of defendant’s witnesses, including interest, $1,621.85, and that complainant offered no testimony as to such difference in value. Tbe chancellor decreed this amount in favor of complainant; and on a consideration of tbe entire evidence, bis decree appears substantially correct.

Affirmed.