Bibby v. Thomas , 131 Ala. 350 ( 1901 )

DOWDELL, J.

While it is not necessary in a complaint of forcible entry and unlawful detainer to aver that the defendant, after entering upon said premises, warned all other persons, especially the plaintiff, to keep off the premises', yet when averred in the complaint, there is no error in refusing to strike the same on motion of the defendant.

There was no error in the ruling of the court upon the second, third and fourth pleas. All of these pleas were fatally defective in their allegations, and besides the defendant had.the benefit, under the plea of not guilty, of any valid defense sought to be set up under the second, third ’and fourth pleas.

The fifth plea was an attempt to answer the complaint byr replying that the plaintiff had previously forcibly entered and detained 'said premises from the defendant. It is no answer to a complaint for forcible entry and detainer that the plaintiff has been guilty of the same Avrong towards tlie defendant. Moreover, in so far as said plea avers an abandonment of said premises by-plaintiff’s tenant, McDonald, and a peaceable re-entry upon said premises by the defendant, it was competent to show this under the plea of not guilty. Consequently no injury resulted to the defendant by the court’s action upon this plea; hence no reversible error.

There was no error in the allowance of the amendment to the complaint. This amendment constituted no departure, but only gave a more definite and particular description of the property. — Farley v. Bay Shell Road Co., 125 Ala. 184.

The cause was tried by the court without the intervention of a jury, and judgment rendered for the plaintiff. There were several objections and exceptions reserved upon the trial in the introduction of evidence, but in none of these have we been able to discover that the court committed any error. Some of the objections were to questions propounded to the witness and ending with the objection to the question, without exception being reserved to the answers. Where questions are in themselves proper, and call for legal and competent evidence, but the answer is objectionable, the objection, in order to be availing, should be followed by a motion to exclude the objectionable answer. It was competent for the plaintiff to show that he had instructed Morgan to take possession of the premises upon the moving out of plaintiff’s tenant McDonald. This evidence tended to show, and did show, that there was no abandonment of the possession by the plaintiff upon the termination of McDonald’s occupancy. It was also competent for the plaintiff to show the declarations of the persons who entered and took possession of the house by direction of the defendant Avhile McDonald was in the act of moving out; such declarations being made by said parties while in the act of taking such possession. It cannot be doubted that if such declarations had been made by the defendant himself, that the same would have been competent in evidence against him, and it is not denied, but admitted, that these parties entered upon the premises under defendant’s direction. The defendant in his oAvn testimony admits that he warned the plaintiff’s son, who had been sent as agent of the plaintiff to take possession after' McDonald had moved out, to keep off the premises, and furthermore threatened him, if he did not, with a prosecution for trespass. Consequently the testimony upon the part of the plaintiff to the effect that the defendant had warned all persons, and especially the plaintiff, to keep off of said premises, if error at the time of its admission, was without injury, inasmuch as the defendant subsequently admitted what this evidence tended to show; besides, the evidence ivas legitimate and proper as tending to show, not only that the defendant was holding possession by force, but also dispensed with any further proof by plaintiff of a demand for possession before suit was. brought. — Farley v. Bay Shell Road Co., supra.

We find no error in the record, and the judgment of the court below is affirmed.

Affirmed.