Linton v. Morton , 240 Ala. 563 ( 1941 )

This appeal is from the judgment of the Circuit Court of Jefferson County entered on the verdict of a jury, awarding the appellee possession of the land sued for together with damages as "mesne profits as ascertained and assessed by the jury upon the proof produced upon the trial of this cause," and costs. The appellant did not reserve a bill of exceptions.

The complaint consists of a single count following, substantially, Form 29 prescribed by § 9531 of the Code for unlawful detainer, and referred to in the index of the Code as "statutory form" for the action of ejectment. The only difference between Form 29 and Form 32, the form for the statutory action in the nature of ejectment, is that Form 29 does not contain an averment of previous possession by plaintiff and ouster by the defendant. The complaint is sufficient to invoke the court's jurisdiction and sustain the judgment. Therefore, conceding that ground seven of the demurrer was well taken, the plaintiff could recover only on the strength of his title, not on the weakness of the title of his adversary. 8 Ala. Dig., Ejectment, 9(3), p. 188; Doe ex dem. Slaughter et al. v. Roe ex dem. W. M. Carney Mill Co.,221 Ala. 121, 127 So. 671. The appellant has the burden of showing not only error but probable injury.

From examination of the record we are unable to affirm probable injury from the ruling of the court on the demurrer to the complaint. Henderson v. Tennessee Coal, Iron Ry. Co.,190 Ala. 126, 67 So. 414.

The appellant in brief discusses the ruling of the court in respect to striking defendant's pleas "A," "B," "C," "DE." Such pleas do not appear in the record, nor is there any such ruling shown.

The constitutionality of the Act of 1931, p. 370, as amended by the Gen.Act of 1933, Ex.Sess., p. 183, was not raised on the trial and is not now presented. State ex rel. Knox v. Dillard et al., 196 Ala. 539, 72 So. 56.

No reversible error appearing on the record, the judgment will be affirmed.

Affirmed.

GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.