#### J. O. McDowell v. C. B. Jones, et al.

1. Freehold—when, not involved. A freehold is not involved in an action of trespass quare clausum fregit to recover for an alleged encroachment upon the premises of the plaintiff in putting down a sidewalk upon a public street.

2. Reversal—when errors loill not worlc. Notwithstanding many errors may have occurred during the trial of a cause, yet where it appears that substantial justice has been done and that no other verdict than that rendered would have been justified, a reversal will not be ordered.

Action of trespass quare clausum fregit. Error to the Circuit Court of Lawrence County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the February term, 1904.

Affirmed.

Opinion filed September 9, 1904.

W. F. Foster, for plaintiff in error.

Gee & Barnes and Lewis & Sumner, for defendants in error.

Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was an action in trespass quare clausum fregit, by plaintiff in error against defendants in error, in the Circuit Court of Lawrence County, to recover damages for an alleged encroachment upon the premises of plaintiff in error in putting down a sidewalk along one of the public streets *14in the city of Sumner. Trial by jury. Verdict and judgment in favor of defendants in error.

The Supreme Court has decided that a freehold is not involved in this case, and therefore this court has jurisdiction. The former proceeding here, in which the appeal was dismissed without consideration or determination of the merits of the case, does not constitute a bar to this suit. This is not a continuation of the original suit nor of the former appeal. A writ of error is a writ of right, and the suing out of a writ of error is the beginning of a new suit.

Plaintiff in error charges that in putting down a sidewalk for the city along one of its public streets, defendants in error encroached upon his abutting premises to the extent of one foot. Defendants deny this charge and insist that they placed the sidewalk wholly within the street. This presents the primary and controlling question of fact in this case. There was no substantial error on the part of the court in its rulings as to the admission or rejection of evidence bearing upon this issue, and the weight of it is overwhelmingly against the plaintiff. We are of opinion that no intelligent fair-minded jury could have found otherwise than did the jury in this case, and it is apparent to us 'that substantial justice has been done by the judgment of the trial court.

It is true, as contended by counsel for plaintiff, that the record before us discloses many errors. And it is true that any one of such errors in a close and doubtful case would demand a reversal. But it is also true that where a case is submitted to a jury and there is no substantial error in the admission or rejection of evidence beariüg upon the controlling issue of fact, and the verdict of the jury is the only verdict that an intelligent and fair-minded jury could- in reason and justice have returned, and where it is apparent to the Appellate Court that upon the whole case substantial justice has been done between the parties by the judgment of the trial court, such judgment will not be reversed. The case at bar falls clearly within this case.

The judgment of the Circuit Court is affirmed.

Affirmed.