INGRAM V. THE STATE.

(Decided Jan. 19, 1911.)

APPEAL from Clay County Court.

Heard before Hon. E. J. GARRISON.

WHATLEY & CORNELIUS, for appellant. ALEXANDER M. GARBER, Attorney General, for the State.

SOMERVILLE, J.-As to the organization of the grand jury, the questions presented were decided adversely to the appellant in Patterson v. The State, 171 Ala. 2; 54 South. 696. The predicate for the admission of dying declarations was sufficient.-McEwen v. The State, 152 Ala. 38; 44 South. 619. Affirmed.

DOWDELL, C. J., ANDERSON and SAYRE, JJ., concur.

STATE EX REL. CITY OF TUSCALOOSA V. COURT OF COUNTY COMMISSIONERS

OF TUSCALOOSA COUNTY.

(Decided July 6, 1911.)

APPEAL from Tuscaloosa County Court.

Heard before Hon. H. B. FOSTER.

SOMERVILLE & CLARKSON, for appellant. OLIVER, VERNER & RICE, for appellee.

DOWDELL, C. J.-Affirmed on the authority of Board of Revenue of Jefferson County,, State ex rel. City of Birmingham, 172 Ala. 138, 54 South. 757.

ANDERSON, MCCLELLAN, MAYFIELD. SAYRE and EVANS, JJ., concur.

SUBJECT INDEX.

ABATEMENT AND REVIVOR.

See Pleading, § 4.

Abatement and Revivor; Another Action Pending.-The pen-
dency of a prior suit in a court of competent jurisdiction between
the same parties will abate a later suit because the latter is deemed
unnecessary and vexatious; but the plea is not available unless the
judgment which would be rendered in the prior action would be
conclusive between the parties and operate as a bar to the same.—
Sloss-S. S. & I. Co. v. Milbra, 658.

Actions; Same Person as Plaintiff and Defendant; Sale of
Infant's Land.-An administrator could not as next friend of his
infant ward prosecute a suit chiefly against himself both as admin-
istrator and as his guardian for the sale of lands of an estate.--
Swope v. Swope, 157.

ACTS CITED OR CONSTRUED.

General.

1900-1, p. 2099.

1907- p. 425.

1907 (S. S.) p.

1909- p. 70.
1909- p. 304.
1909- p. 304.
1911- p. 449.
Local.

1871-2, p. 109.
1888-9, p. 210.

1892-3, p. 231.

1894-5, p. 938.

1896-7, p. 267.

Sullivan v. Central L. Co., 426.

Touart v. State ex rel. Callaghan, 453.
179. Dowling v. City of Troy, 468.

Com. Ct. Pike County v. City of Troy, 442.
Com. Ct. Pike County v. City of Troy, 442.
Oberhaus v. State ex rel. McNamara, 483.
Dowling v. City of Troy, 468.

Oberhaus v. State ex rel. McNamara, 483.
Oberhaus v. State ex rel. McNamara, 483.
Darby City of Union Springs, 709.

Darby v. City of Union Springs, 709.
Scales v. Central I. & C. Co., 639.

ADVERSE POSSESSION.

See Ejectment; Deeds.

Adverse Possession; Agreed Line; Occupancy.-Where coter-
minus owners of land agreed on a dividing line, and followed up the
agreement by the joint construction of a division fence, and after-
wards occupied to the fence, their possession was adverse, and hav-
ing continued for twenty years, conferred title to the line.-Davis,
et al. v. Grant, 4.

Adverse Possession; Effect; Evidence of Title.-Actual possession
of land for about fifty years under color of title extending proximate-
ly to the boundary line of the land of an adjacent owner, and exclu-
sive user of an alley over the land for over thirty years is of itself
evidence of title to the alley.-Barker v. Mobile Elec. Co., 28.

Adverse Possessions; Instructions; Burden of Proof.-The bur-
den being upon the plaintiff to make out a prima facie right to re-
cover, a charge asserting that the burden was upon the defendant
to prove his plea of adverse possession, is properly refused as mis-
leading, where it is a question for the jury as to whether the prima
facie right to recover has been made out.-Hardy v. Randall, 516.

Same; Claim or Color.-A deed void for uncertainty or indefi-
niteness in description cannot operate as color of title; but a deed

ADVERSE POSSESSION-Continued.

may serve as color of title although it does not so describe the land
as from it alone the land may be identified, if the description can be
made so.-Ib., 516.

Adverse Possession; Actual Possession; Occupation of Part.-
As a rule, occupancy of a part of land entered upon in good faith
under color of title extends to the boundaries described in the color
of title, though a part of the land is not actually occupied; but this
rule does not apply where the conveyance is of two distinct tracts,
to only one of which the grantee has the legal title, and actual oc-
cupancy. However, each governmental subdivision or quartersection
does not of itself constitute a distinct tract within the exception.
-Marietta Fert. Co. v. Blair, 524.

Same.-Adverse possession of the whole of a tract, within the
boundaries described by the color of title, by actual occupancy of a
part thereof, is, in legal contemplation, actual and not constructive
possession, and may be restricted as to the part not actually oc-
cupied by the actual occupancy of another.-Ib., 524.

Same-In gaining by adverse possession title to the whole of
tract, by the actual occupancy of a part thereof, the relative pro-
portion of the whole contiguous tract to the part actually occupied
is immaterial, and title to an entire half section was gained by the
adverse occupation, and actual cultivation of fifteen or twenty acres
thereof under color of title to the whole tract.—Ib., 524.

AFFINES.

See Jury.

AMENDMENTS.

See Equity, § 1; Appeal and Error, § 4a; Pleading, § 1.
ANCIENT DOCUMENTS.

Appeal and Error; Findings; Injunction.-Conclusions for or
against dissolving an injunction made on a motion for dissolution
must, under the statutes, be treated on appeal as any other finding
of fact at equity.-Nelson, et al. v. Hammond, 14.

Same; Findings; Conclusiveness.-Where motion was made to
dissolve an injunction and the complainant and his son were improp
erly permitted to testify orally and have their testimony reduced to
writing, although irregular, this court will review the findings upon
such testimony, the affidavits and sworn bill and answer, and the
findings will not be annulled unless so insufficiently supported that a
verdict thereon will be set aside, and this notwithstanding the chancel-
lor's findings of the facts should have no weight upon a review
thereof. Ib., 14.

2. Record.

(a) Conclusiveness.

Same; Record; Conclusiveness.-An assertion in brief of coun-
sel cannot be taken to supplement or contradict the record.-Nelson,
et al. v. Hammond, 14.

Appeal and Error: Conclusiveness of Record; Bill of Excep
tions. Where a judge changes a bill of exceptions, whether prop-
erly or not. and without action to establish a proper one, the one so
signed, is made a part of the record, it will be considered by this
court, as the proper one, and cannot be changed or corrected by re-
sorting to extraneous matters.-Hughes v. Albertville Merc. Co.,
559.

Appeal and Error; Record; Conclusiveness; Impeachment;
Fraud. While a record imports verity, it may be attacked for
fraud; hence, although the affidavit and bond required to be made

APPEAL AND ERROR-Continued.

in attachment proceedings appeared upon the fact of the record on
appeal, the defendant could show that they were in the record il-
legally by fraud.-Oliver v. Kinney, 593.

(b) Questions Presented.

Appeal and Error; Questions Presented; Record.-Where the
record showed that pleas 1 and 2 were not refiled to the substituted
bill as last amended but that pleas 3 and 4 were filed to such bill,
and the decree recites that the cause was then submitted for decree
upon the sufficiency of the plea, it did not affirmatively appear that
the cause was set down for hearing on pleas 1 and 2 to the bill as
amended.-Cartwright v. West, 198.

Appeal and Error; Review; Questions Presented.-Where it af-
firmatively appears from the record that all of the testimony of wit-
nesses on their several examinations is not set out, any difference in
their testimony on different examinations cannot be considered on
appeal with reference to their credibility.-Hall & Farley v. Ala. T.
& 1. Co., 398.

3. Objection in Lower Court.

Appeal and Error; Objections Below; Parties.-If not taken
advantage of by plea, demurrer or answer, an objection that a bill
is defective because of want of proper parties, is waived, but if the
cause cannot be properly disposed of on its merits, without the
presence of the absent parties, the objection may be made at the
hearing, or on error, or may be taken by the court ex mero motu.
However, the question of a person, not made a party, being a neces
sary party cannot be considered on appeal from a decree sustaining
demurrers to the bill, where want of proper parties is not one of
the grounds of demurrer.-Singo, et al. v. Brainard, 64.

Appeal and Error; Objection Below; Necessity.-An appellate
court will not pass upon a ground of demurrer not presented in the
lower court although argued in brief on appeal.-Ellis v. Vande-
grift, 142.

Same; Objections Below; Requested Instructions.-One not sat-
isfied with an oral charge, because omitting certain elements, should
request a special charge covering this feature before he is entitled
to complain.-L. & N. R. R. Co. v. Holland, 675.

Appeal and Error; Harmless Error; Amendment to Prayer.-
Where the relief given by the decree against the respondent in
default was authorized by the facts and the general prayer con-
tained in the bill error cannot be predicated on the allowance of an
amendment which was only the addition of a special prayer, with-
out notice.-Rosenau v. Powell, 123.

(b) Pleadings.

Appeal and Error; Harmless Error; Pleading.-Where a de-
murrer to a good plea in abatement is sustained, and another plea,
called a plea in abatement, but which in effect, is both a plea in
abatement, and a plea in bar, was overruled, the sustaining of the
demurrer to the first plea in abatement is prejudicial error, since to
sustain the second plea, the defendant would not only have to prove
his plea in abatement, but also his plea in bar, and the proof which
would support the verdict upon the first plea would not have sup-
ported one under the second.-Sloss.-S. S. & I. Co. v. Milbra, 658.
(c) Instructions.

Appeal and Error; Harmless Error; Instructions.-Since this
court cannot know on appeal what the evidence would have been if
the issues had been differently shaped, or that the defendant might
not have amended his insufficient pleas so as to have presented a

APPEAL AND ERROR-Continued.

meritorious defense, if the demurrers thereto had been sustained,
errors in charges which depart from the theory observed in passing
on the demurrers were prejudicial, notwithstanding plaintiff made
out a prima facie case by proof without conflict, and the facts as
stated by the bill of exceptions seem to preclude any special de-
fense.-Pratt Cons. C. Co. v. Davidson, 667.

Same; Harmless Error; Instructions.—Where part of the oral
charge might have misled the jury to the belief that the mortality
tables were conclusive upon the question of life expectancy, a fur-
ther instruction that they were not compelled to look to these tables,
but might do so in determining the probable expectancy, cured the
error.-L. & N. R. R. Co. v. Holland, 675.

(d) Evidence.

Appeal and Error; Harmless Error; Evidence.-It being the
rule that the erroneous exclusion of evidence is cured by the later
admission of such evidence, the exclusion of an answer of a witness
was not prejudicial where, upon interrogatories propounded by
plaintiff under the statute, the witness testified to the excluded
facts, and the depositions were introduced.-L. & N. R. R. Co. v.
Holland, 675.

5. Assignments of and Waiver.

Appeal and Error; Assignment; Joint.—Where error is jointly
assigned injury must be shown to all parties joining in the assign-
ment to sustain it.-Cook, et al. r. Atkins, 363.

Same; Waiver of Error.-The submission on brief without in-
sistence on a certain assignment is a waiver of such assignment un-
der Supreme Court Rule 10.-L. & N. R. R. Co. v. Holland, 675.

Same. Where the appellant has waived the error in a certain
assignment by a submission on brief without an insistence on it, he
cannot at a later date retract the waiver and in a supplementary
brief insist upon the assignment.-Ib., 675.

Same; Estoppel to Allege Error.-Where one count proceeded
on the theory that the deceased was a stranger to the railroad com-
pany, and the defendant requested and obtained a charge that de-
ceased was a trespasser, and that the railroad owed him no duty,
except in good faith to make an effort to avoid injuring him after
discovering his peril, the defendant could not urge on appeal that
there was a variance in that the proof showed that the relation of
master and servant existed.-1b., 675.

6. Review.

(a) Discretion.

Appeal and Error; Review; Discretion.-The discretion of
the trial court in excluding drawings offered by counsel in argu-
ment without formal offer as evidence with the statement that it
was not a map but merely an illustrated drawing based upon the
evidence in the case, will not be disturbed except upon abuse shown.
-Hardy v. Randall, 516.

(b) Matters Reviewable.

Same; Review; Grounds; Specifications.-Where matter was
admitted in evidence under the rulings of the trial court, and was
not palpably inadmissible, its admission will not be reviewed where
no specific objections were taken.-Hardy v. Randall, 516.

7. Reversal and Effect.

Appeal and Error; Reversal; New Pleading; Dilatory Plea.-
Where an action for causing the death of a child on a railroad
track had been once tried, and on appeal the judgment was re-
versed, it was within the discretion of the trial court on the second
trial to refuse to permit the defendant to file a dilatory plea set-