Abercrombie v. Pell
| Decision Date | 24 February 1938 |
| Docket Number | 7 Div. 498 |
| Citation | 179 So. 371,235 Ala. 396 |
| Parties | ABERCROMBIE v. PELL. |
| Court | Alabama Supreme Court |
Appeal from De Kalb County Court; J.A. Johnson, Special Judge.
Action by O.H. Pell against Mrs. M.J. Abercrombie. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals, under Code 1923, § 7326.
Reversed and remanded.
Isbell & Beckford, of Fort Payne, for appellant.
Haralson & Crawford, of Fort Payne, for appellee.
The complaint contained counts ex contractu, that is, four common counts, and a count ex delicto, in trover, for the conversion of a bale of cotton. The amount claimed in each of the common counts was $200, while the amount claimed in the trover count was $100.
In count A, the trover count, there is this averment: "The plaintiff avers that counts one, two, three and amended Count A are all pertaining to the same subject matter and growing out of the same transaction."
The court overruled demurrers to count A, and the cause then proceeded to trial on three of the common counts, and on count A, resulting in a verdict for the plaintiff for $40 without specifying under which count the verdict was rendered.
Count A was manifestly defective in at least two particulars: First in not averring the time when the conversion took place; and second, in not alleging plaintiff's ownership of the property at the time of the alleged conversion.
In action of trover an averment of the exact time of the conversion is not required, but it is necessary to allege the time as nearly as practicable, in order to correspond with the proof and not to lead to a variance. As to how definite and certain the averment of time of the conversion should be made, must depend, in a measure, upon the particular facts of each case. Williams v. McKissack, 125 Ala. 544, 27 So. 922; Mobile J. & K.C.R.R. Co. v. Bay Shore, etc., Co., 158 Ala. 622, 48 So. 377; Corona Coal & Iron Co. et al. v. Bryan et al., 171 Ala. 86, 54 So. 522, Ann.Cas.1913A, 878; Howton v. Mathias, 197 Ala. 457, 73 So. 92; Ballenger v. Ballenger, 205 Ala. 595, 88 So. 826.
In the next place, the count was demurrable in not alleging the ownership by plaintiff of the cotton alleged to have been converted by defendant. Weil Bros. v. Ponder, 127 Ala. 296, 28 So. 656; Snedecor v. Pope, 143 Ala. 275, 39 So. 318.
In overruling the demurrers to count A, there was manifest error, but the appellee insists, however, that it was error without injury or prejudice to the defendant, inasmuch as the verdict may well be referred to the common counts. In some cases this may be done. In support of his contention, the appellee brings to our attention a number of cases, viz.: McClelland v. Coston, 227 Ala. 267, 149 So. 697; Smith et al. v. Summers et ux., 215 Ala. 690, 112 So. 344; Gillis v. White, 214 Ala. 22, 106 So. 166; Hill's Adm'r v. Nichols, 50 Ala. 336; Espalla v. Wilson, 86 Ala. 487, 5 So. 867; Finney v. Newson, 203 Ala. 191, 82 So. 441.
It will be noticed, however, that each of the above cases was predicated upon contract, and the judgment, as to its effect upon the defendant, and his property rights, would be the same. Not so in this case. Count A was an ex delicto action, and as against a judgment thereon, and on execution issued upon the judgment, the defendant would not be entitled to claim exemptions.
The verdict is silent as to what count it was based on; and the court, proceeding...
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Hickman v. Hannas
...converted. It was, therefore, error to overrule the demurrer to this count. Weil v. Ponder, 127 Ala. 296, 28 So. 656; Abercrombie v. Pell, 235 Ala. 396, 179 So. 371. Appellee earnestly insists that under Supreme Court Rule 45 this is not reversible error since ownership in the plaintiff was......
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...Imports. Time is not of the essence in a trover action, hence it is only necessary to allege it as nearly as practicable. Abercrombie v. Pell, 235 Ala. 396, 179 So. 371. And when time is alleged under a videlicet in an action for conversion, the proof of the exact date does not have to coin......
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...209 Ala. 289, 96 So. 193; Finney v. Newson, 203 Ala. 191, 82 So. 441; White v. Jackson, 36 Ala.App. 643, 62 So.2d 477. Abercrombie v. Pell, 235 Ala. 396, 179 So. 371, is readily distinguishable from the case at bar. There, one count was ex delicto and the other ex contractu, and a question ......
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...606, 61 So. 821. In trover time is not of the essence, and it is only necessary to allege it as nearly as practicable. Abercrombie v. Pell, 235 Ala. 396, 179 So. 371; Corona Coal & Iron Co. v. Bryan, 171 Ala. 86, 54 So. Where time is alleged under a videlicet, the fact that the evidence doe......