Buford v. Christian , 149 Ala. 343 ( 1907 )

TYSON, C. J. —

This is an action of trespass quare clausum fregit. To the complaint the defendant, in addition to the pled of the general issue, filed two special pleas, numbered 8 and 9, which were, on motion, stricken from the file. The matters set up in these pleas were allowed to be shown under the general issue. It thus being made to affirmatively appear that the defendant had the full benefit of the pleas on the trial, the striking of them, if error, was clearly harmless. — L. & N. R. R. Co. v. Hall, 131 Ala. 161, 32 South. 603.

Since the plaintiff only recovered nominal damages ($1), the defendant was not prejudiced by the admission in evidence of his conduct with respect to the land in controversy after the commencement of the action.

“The gist of the action is the injury done to the possession; and, of consequence, to support it the plaintiff must show that, as to the defendant, she had at the time of the.alleged injury rightful possession, actual or corn structive. Of course, if he has title to the property alleged to have been trespassed upon, he has constructive possession of it, unless he has parted with the possession, conferring on another the exclusive right of enjoyment, against whom he has not the right of immediate possession.” — L. & N. R. R. Co. v. Hall, supra. The evidence clearly authorized the jury to find that the land upon which the alleged trespass was committed belonged to the plaintiff, and that she had either the actual or constructive possession of it at the time the trespass was committed. The affirmative charge requested by defendant was, therefore, properly refused.

The atornment of Baker, while the tenant of plaintiff, to the defendant, without notice to the plaintiff, did not destroy her possession. — Fleming v. Moore, 122 Ala. 399, 26 South. 174. Charges 11 and 12, given at plaintiff’s request, as we construe them, assert no more than this principle. If it was perceived that they were calculated to mislead the jury, this, could have been corrected by requested instructions.

Charges 2 and 26, requested by defendant, were properly refused. Under the undisputed testimony the landescribed in the complaint belonged to the plaintiff, and the act of possession, relied upon and asserted in these charges as constituting adverse possession, was, under the testimony, a trespass pure and simple. Indeed, the defendant, in his testimony, shows that he does not, and never did, assert any right, title, or claim to any land in section 12, upon which the trespass in the complaint in this case is alleged to have been committed.

The only remaining point insisted upon is that the presiding judge ¡erroneously certified that plaintiff should have been awarded greater damages than $20 .by the jury. This certificate was authorized by section 1326 of the Code of 1896, which is in this language:

“In all actions to recover damages for torts the plaintiff recovers no more costs than damages, where such damages do not exceed twenty dollars, unless the presiding judge certifies that greater damages should have been awarded; and on failure to certify, judgment must be rendered against the plaintiff for such residue.” The action of the presiding judge in refusing to certify, or in certifying, under the statute, is not made revisable under the statute by this court, and, therefore, cannot be reviewed. The exercise of this power or authority committed to him by the statute is similar to that formerly exercised by the judges of the circuit courts in disposing of motions for new tifiáis, which rulings’were not revisable by this court until made so 'by statute. — 2 Brick. Dig. 276, § 1. And at this time the disposition of a motion for new trial by the probate court is not revisable; neither is it in criminal cases, nor is the action of a trial court in refusing to set aside a judgment by default. — Haygood v. Tait, 126 Ala. 264, 27 South. 842; Beatty v. Hobson, 133 Ala. 270, 31 South. 946; Walker v. State, 91 Ala. 76, 9 South. 87.

But it is insisted that the action of the judge here complained of will be controlled by mandamus, and to this end a motion is made. We are clearly of the opinion that his act cannot be revised in this way. It can no more be the office of a writ pf mandamus to revise the act of the presiding judge in the matter sought to be revised than it would be the function of the writ to review-his ruling upon a motion for a new trial, if no appeal was provided by statute. The motion must, therefore, be denied.

No error being shown of prejudice to apellant, the judgment appealed from must be affirmed.

Affirmed.

Haralson, Simpson, and Denson, JJ., concur.