Summary
holding that appellate courts cannot consider matter that is dehors the record on appeal
Summary of this case from Blackmon v. BrazilOpinion
SC 1309.
November 6, 1975.
Appeal from the Circuit Court, Madison County, David R. Archer, J.
H. Evins Hamm, Huntsville, for appellant.
An action to quiet title in rem or in personam cannot be maintained by a party not in actual possession of the land in question at the time of the initiation of said action. Code of Alabama, 1940, Title 7, Sec. 1109 et. seq. and Sec. 1116 et. seq; Palmer v. Rucker, 289 Ala. 496, 268 So.2d 773; Dennison v. Clairborne, 289 Ala. 69, 265 So.2d 853; Patronas v. West Dauphin Corp., 280 Ala. 442, 194 So.2d 845. When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere allegations of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing there is a genuine issue for trial, and if he fails to do so, summary judgment, if appropriate, shall be entered against him. Alabama Rules of Civil Procedure, 1973, Rule 56(e); State ex. rel. Baxley v. Givhan, 292 Ala. 533, 297 So.2d 357; Owens v. Bank of Brewton, 53 Ala. App. 529, 302 So.2d 114. When facts asserted are such that, if established, there could be no recovery, or where undisputed facts are such as would preclude plaintiff's recovery, question on motion for summary judgment by the Defendant becomes one of law for determination by the Court and a proper matter for disposition by summary judgment. McLaughlin v. McLaughlin, 53 Ala. App. 545, 302 So.2d 233; Greyhound Corporation v. Excess Insurance Co. of America, 233 F.2d 630 (C.A.Fla. 5 Cir. 1956). Where the judgment of the Trial Court is without any competent supporting evidence, the Appellate Court has no alternative but to reverse. McCullough v. Roberts, 292 Ala. 451, 296 So.2d 163; St. Clair Industries, Inc. v. Harmon's Pipe Fitting Co., Inc., 282 Ala. 466, 213 So.2d 201; Johnson v. Johnson, 277 Ala. 126, 167 So.2d 688.
David E. Worley, Huntsville, for appellee.
A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. Alabama Rules of Court, Rule 56, (B), Alabama Rules of Civil Procedure as Amended to July 1, 1975. Summary Judgment procedure must be regarded as an innovation in Alabama. The statutory authorization for summary proceedings, Lit. 7, 8591 et seq., Code of Alabama is so limited as to bear little similarity to the procedure here provided. Alabama Rules of Court, Rule 56, Committee Comments, Alabama Rules of Civil Procedure as amended to July 1, 1975. This rule is closely connected with Rule 12(b)(6) providing for a motion to dismiss for failure to state a claim on which relief can be granted, and Rule (2)(c) providing for a motion for judgment on the pleadings. If, on those Rule 12 motions, matters outside the pleadings are presented to and not excluded by the Court, motion is to be considered as for Summary Judgment, and the test of this rule is applicable. See Clark, the Summary Judgment, 36 Minn.L.Rev. 567, 573-576, (1952). When facts asserted are such that, if established, there could be no recovery, or where undisputed facts are such as would preclude plaintiff's recovery, question or motion for Summary Judgment by the Defendant resumes one of law for determination by the Court and a proper matter for disposition by Summary Judgment. McLaughlin v. McLaughlin, 53 Ala. App. 545, 302 So.2d 233; Greyhound Corporation v. Excess Insurance Co. of America, 233 F.2d 630 (C.C.A.Fla., 5 Cir., 1956). So long as there is no adverse holding the true owner owes no one the duty of a visible or audible assertion of ownership, and no unfavorable inferences can be drawn from his inactivity. Rucker v. Jackson, 180 Ala. 109, 60 So. 139, Ann.Cas. 1915C, 1058. Recovery is not allowed upon actual prior possession per se, but on the title which such prior possession evidences. Widmer v. Lloyd, 193 Ala. 386, 69 So. 480, Ann.Cas. 1917A, 576. In order to establish a title to land by adverse possession, it must be shown that for a period of ten (10) years, the claimant and those under whom he claims held a hostile possession under claim of right that was actual, exclusive, open, notorious, and continuous. Beasley v. Howell, 117 Ala. 499, 22 So. 989; Alexander City Union Warehouse and Storage Co. v. Central of Georgia Co., 182 Ala. 516, 62 So. 745. The indispensable elements of "adverse possession" are that the possession be hostile and under claim of right, actual, open, and notorious, exclusive and continuous. Kidd v. Browne, 200 Ala. 299, 76 So. 65.
This appeal is from a summary judgment in favor of plaintiff in a statutory quiet title action, Tit. 7, § 1109, Code 1940. The judgment must be reversed.
Plaintiff, Joe H. Adams, initially filed an action in the nature of ejectment against the then defendant, Jack Cantrell. His complaint stated that he "sues to recover possession of the following tract of land" (describing it as containing approximately 0.87 of an acre). Cantrell demanded an abstract pursuant to Tit. 7, § 940, and filed a demurrer to the complaint on May 3, 1973. (This was prior to the effective date of ARCP, July 3, 1973.) On May 28, 1974, Cantrell informed the court that he had conveyed the property to James L. Cooper and moved that Cooper be substituted as defendant. The motion was granted.
On June 10, 1974, Cooper moved for a summary judgment and Adams countered by dismissing his ejectment count and he amended by adding the statutory bill to quiet title. An order granting the motion was rendered September 26, 1974.
The next action shown by the record was a second motion by defendant Cooper for summary judgment. Cooper attached an affidavit of his father, James K. Cooper. The father stated that he purchased the property for his son from one A. E. Speed in 1960, that his son went into possession and rented a tin building, which Speed had built on the property, to various tenants until his son sold the property to Jack Cantrell in 1971; that Cantrell went into possession until he sold the property back to Cooper's son on August 10, 1973; that during Cantrell's ownership, Cantrell "improved the tin building and made it into a 3 room house and garage and made it his residence. After buying said property back from Jack Cantrell, I immediately went back into possession of said property on behalf of my son and I have been in continuous possession of same since then to the present time, renting same to various tenants on behalf of my son."
This was all and the only testimony in the record as to possession.
The next action shown in the record is the judgment of the trial court. Even though defendant Cooper made the motion for summary judgment, the judgment was entered for the plaintiff Adams. It is dated March 25, 1975 and reads:
"This cause coming on to be heard on the motion for summary judgment, argument of counsel, various exhibits, and affidavits by various parties, and the Court having heard and considered same is of the opinion that the Plaintiff is the owner in fee simple of the property described in the Bill of Complaint.
"In accordance with the motions heretofore filed, the Plaintiff is the owner of the land described herein in fee simple."
Under a bill to quiet title pursuant to the statute, Tit. 7, § 1109, Code 1940, "the complainant must have the quiet and peaceable possession, actual or constructive, as distinguished from a contested, scrambling or disputed possession." Motley v. Crumpton, 265 Ala. 565, 93 So.2d 413; Ford v. Washington, 288 Ala. 194, 259 So.2d 226. The last case quotes from our opinion on rehearing in Chestang v. Tensaw Land Timber Co., 273 Ala. 8, 16, 134 So.2d 159, 166, as follows:
" '* * * that jurisdiction of a statutory procedure is invoked by the allegations, not the proof.
* * * * * *
" 'At trial, the burden is on complainant to prove his allegations. If he cannot, he fails to recover and his suit cannot be maintained. But that does not mean that the equity court suddenly lost jurisdiction to proceed any further. * * *' "
Here, the complaint alleged the jurisdictional allegation of peaceable possession in paragraph 3 of the complaint, but he offered no proof and made no move from the date of the filing of defendant's affidavit on Jan. 23, 1975 to the entering of the decree on March 25, 1975 to dispute the proof of peaceable possession by defendant.
A paragraph in Palmer v. Rucker, 289 Ala. 496, 268 So.2d 773, is applicable here:
"There is undisputed testimony sufficient to show actual possession by the appellants at the time that suit was instituted."
Since the plaintiff did not meet the burden of proving his allegations, there was no proof to support the judgment of the court and it must be reversed.
In brief on appeal, counsel for Adams includes an abstract as an exhibit, but the abstract is not in the record before us; and shortly before oral argument, an affidavit of the trial court was filed and that this exhibit "was both read and considered by me in the decision of this case."
These matters, being dehors the record, cannot be considered. The case of Coleman v. Estes, 281 Ala. 234, 201 So.2d 391, states two applicable rules:
(1) Argument in brief reciting matters not disclosed by the record cannot be considered on appeal.
(2) The record cannot be impeached on appeal by statements in brief, by affidavits, or by other evidence not appearing in the record.
This court is remitted to a consideration of the record alone and absolute truth must be imputed to it. If it is incomplete or incorrect, amendment or correction must be sought by appropriate proceedings rather than by impeachment on the hearing in the appellate court. The record cannot be changed, altered or varied on appeal by statements in briefs of counsel, nor by affidavits or other evidence not appearing in the record. Evans v. Avery, 272 Ala. 230, 130 So.2d 373; Blanton v. Blanton, 276 Ala. 681, 166 So.2d 409.
It is only fair to state that counsel on appeal was different from counsel in the trial court.
Reversed and remanded.
HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur.