Goggans v. Myrick , 131 Ala. 286 ( 1901 )

SHARPE, J.

This suit is for the recovery of damages for an alleged wrongful obstruction of a public road. It is personal in its nature and, therefore, of the class which under section 4205 of the Code may be brought in the county of the defendant’s residence as well as in that where the act complained of was done. The road’s location did not determine the court’s jurisdiction of the case, and was only necessary to be alleged in the complaint in such way as to notify the defendant of the cause of action. The complaint meets that requirement both in respect of the character of the wrong and of the place of its commission.

The inconvenience alleged to have resulted to- plaintiff from the obstruction in hindering ingress to and eg’ress from his abutting homestead, was a species of injury which bore peculiarity on him and was a sufficient predicate for an action for his individual reparation, as distinguished from a suit in behalf of the public.

The complaint was neither subject to the demurrer nor to the motion to strike out averment's of damage. The motion included the alleged inconvenience to travel which was certainly proximate injury, and was too •broad to raise the question of whether the alleged loss of profit to business was remote.

Plaintiff’s testimony relating to inconvenience caused to himself and family in visiting the neighboring post-office, church and schools, was within the complaint’s averment of damages and was properly admitted.

The testimony elicited from Young against defendant’s objection, even if not within the permissible scope of cross-examination, was apparently not injurious to defendant; and for that reason, if for no other, its admission is not cause for reversing the judgment.

Without dispute it was proven that for more than twenty years before it was closed by defendant’s fence, the road in question had been a public road. To show it had been discontinued as such defendant relied on an entry purporting to order such discontinuance appearing on a book labelled “Commissioners Docket, 1898, Jefferson County.” Other than by the book itself its character was shown only by the testimony of a witness who had been a member of the commissioners’ court. He testified that that court kept a record of its proceedings. In the language of the transcript, “the witness further testified that he docketed the application above shown (to discontinue the .road) but did not write anything else pertaining thereto and do not recognize the handwriting. This docket is not the record kept by the probate or court of county commissioners, but is the docket kept by the commissioners themselves. At that time the probate judge kept minutes of court of county commissioners.” We think this evidence fails to establish the entry referred to as a judgment. The probate judge is ex-officio the principal judge of the commissioners’ court, and is the officer designated by the statute to record its proceedings. — Code, § 959. The presumption is that he performed that duty, and the evidence shows this docket was not used by him for malting such records. To become efficacious, judgments of courts of record must be formally entered of record in the place adopted pursuant to law and the usage of the court for that purpose. Thereafter they can be proved only by evidence of the contents of that record. Dockets used for memoranda wherefrom the record i's made up do not evidence the judgment. — 1 Greenl. Ev. §§ 508-513; Freeman on Judgments, § 409. The evidence leads to the conclusion that such was the character of the hook containing the entry mentioned, and that the court did not eirr in charging the jury that the entry was not a judgment, or in refusing to charge the jury affirmatively in favor of the defendant as to either count of the complaint.

A charge which asserts a correct proposition hut which is abstract as applied to the evidence 'Should be refused; but in general neither the giving nor refusal of such a-charge will warrant a reversal of a judgment. Of this character are charges 3 and 4 given at plaintiff’s request, and also number 5 refused to defendant.

No reversible error has been assigned. The judgment will be affirmed.