Nix v. Bynum

This is an action in the nature of unlawful detainer under provisions of Title 31, § 35 et seq., Code 1940. The suit was by H. D. Bynum against E. C. Nix for the following property:

"The two rooms occupied by him on the corner of Second Avenue and Holly Street in Decatur, Alabama, the same being located over Moye's Barber Shop and being owned by H. D. Bynum."

The judgment was for the plaintiff for the property sued for, from which judgment the defendant prosecutes this appeal. The suit was begun in May, 1947, and by successive appeals reached this court for submission May 26, 1948.

Brief for appellant touches two points only. First, the insistence is that there is a variance in the allegations and the proof, in that defendant occupied three rooms and part of the hallway. According to plaintiff's proof, the defendant was rented two rooms only, and it is for possession of these two rooms that the suit was brought. If this could be called a variance, it is sufficient answer, without more, to say that the matter was in no manner called to the attention of the trial court, as prescribed by Circuit Court Rule 34, Code 1940, Tit. 7 Appendix, p. 1035.

There is a suggestion, and we may say a suggestion only, that the judgment is void because vague and uncertain. We have indicated above the property sued for and the judgment rendered. This should suffice as an answer to any suggestion of this character.

Finding no error in the record, the judgment should be here affirmed. It is so ordered.

Affirmed.

FOSTER, LAWSON and STAKELY, JJ., concur.