Parker v. Jefferson County , 209 Ala. 138 ( 1923 )

The objection that defendant had not had "at least six days" notice of the action "before the return day of the process" (Code, § 4266) was dilatory in character (Beck v. Glenn,69 Ala. 121, 126); and, the point being taken after defendant's appearance and after the cause had been continued by the court on plaintiff's motion, the defendant had waived the objection even in the justice's court.

The complaint was subject to the demurrer. Its description of the subject-matter of the action was too indefinite and uncertain to answer the purposes of good pleading. Lessley v. Prater, 200 Ala. 43, 75 So. 355; Bradford v. Sneed, 174 Ala. 113,56 So. 532. The property the possession of which is sought to be recovered is described as a "house." If it is assumed that "house" included the lot on which it was situated, still the complaint leaves wholly undesignated what house or lot in plaintiff's "camp # 4," which camp is located on 160 acres in a certain section in Jefferson county, is sought to be recovered. Manifestly the premises sought to be regained are a part of a larger area; and the complaint does not so definitely describe the premises sued for as to avoid recourse, in the execution of possessory process, to service and function on the part of the sheriff that the law has not conferred on that officer. The allusion to the "house" as being that in possession of or occupied by defendant avails nothing in aid of the complaint's sufficiency when considered on demurrer. Bradford v. Sneed, supra. In order to identify the subject-matter, from the description in this complaint, "it would be necessary for the sheriff to take testimony and pass upon its effect," to the end of determining of what land the defendant was in possession, what premises he occupied.

Reliance is placed by the appellee upon Huffaker v. Boring,8 Ala. 87, to justify the description in this complaint. There, as the court noted, the description designated 50 acres situated within the west part of the quarter section. That call was capable of accurate ascertainment. Sims v. Thompson,30 Ala. 158, and others in its line. Here there is no factor of description whereby the area (if so) in question could be ascertained or identified with any degree of certainty.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.

On Rehearing.