Ballenger v. Ballenger

• Decision Date: 21 April 1921
• Docket Number: 7 Div. 190
• Citation: 205 Ala. 595,88 So. 826
• Parties: BALLENGER v. BALLENGER.
• Court: Alabama Supreme Court

88 So. 826

205 Ala. 595

BALLENGER v. BALLENGER.

7 Div. 190

Supreme Court of Alabama

April 21, 1921

Appeal from Circuit Court, De Kalb County; W.W. Harralson, Judge.

Assumpsit and conversion by Julia Ballenger against her son, J.J Ballenger. Judgment for the plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p 449, § 6. Affirmed.

C.A Wolfes, of Ft. Payne, for appellant.

Isbell Scott & Downer, of Ft. Payne, for appellee.

THOMAS J.

The appeal is prosecuted upon the record. The appellant was the defendant in an action originally based upon counts in assumpsit and for conversion. The judgment entry recites that plaintiff was permitted to amend her complaint during the trial by withdrawing the count in assumpsit and by adding counts 3, 4, and 6, over the objection of the defendant. The record shows that the defendant moved to strike last-amended counts on the ground that the same were a departure. Appropriate assignments of error and argument of appellant's counsel are directed to the action of the trial court in overruling the motion to strike the additional counts. Appellant's argument, being limited to this ruling of the trial court (T. & C.R. Co. v. Danforth & Armstrong, 112 Ala. 80, 20 So. 502; Byrd v. Hickman, 167 Ala. 351, 52 So. 426), is a waiver of, or is insufficient to present, other rulings of the trial court for review. Georgia Cot. Co. v. Lee, 196 Ala. 599, 72 So. 158.

Appellant insists that count 2, for the conversion of the property therein described, must be taken to mean that the alleged conversion took place on, to wit, the ______ day of 1916; that the videlicet ("to wit") before the averment ("the ______ day of 1916, 1917, 1918 and 1919") limited the conversion charged to that committed in the year 1916.

Count 2 was for the conversion of personal property of the plaintiff, described as "two mules, one cow, one check for $150.00, and 1/4 of a bale of cotton and seed out of the same and sixty bushels of corn, the property of the plaintiff, on, to wit, the ______ day of 1916, 1917, 1918 and 1919." By the respective amended counts damage was claimed (in count 3) for the conversion of personal chattels, "to wit, 15 bushels of corn and 62 pounds of lint cotton on, to wit, the ______ day of ______, 1917"; (in 4) of personal property, "to wit, 15 bushels of corn and 125 pounds of seed cotton on, to wit, the ______ day of ______, 1918"; (in 6) of personal property, "to wit, 1/2 bale of cotton on, to wit, the ______ day of 1919." This was sufficient description of the property alleged to have been converted; though time being under a videlicet, it extended to the separate conversions during the several years indicated in the respective counts. Howton v. Mathias, 197 Ala. 457, 461, 73 So. 92.

The original counts were filed on December 18, 1919; demurrers thereto filed December 20, 1919, and August 19, 1920; and defendant's pleas of the general issue filed August 19, 1920. Plaintiff's amended complaint, containing counts 3, 4, and 6, was filed August 19, 1920, and defendant's motion to strike last-named counts, and answer thereto, were respectively filed on the date of the trial, which was the last-named date. Issue being joined, there was a jury and verdict for the plaintiff, assessing her damages, and the judgment of the court was duly entered thereon.

There is but one proposition for consideration, and that is whether the court erred in allowing the complaint to be amended by adding counts 3, 4, and 6. Byrd v. Hickman, supra; Ala. C.C. & I. Co. v. Heald, 154 Ala. 580, 45 So. 686.

In L. & N.R.R. Co. v. Cofer, 110 Ala. 491, 18 So. 110 it was declared that in an action against a railroad company to recover damages for negligently killing several animals at different times, averred by way of separate counts, such complaint was not demurrable upon the ground of a misjoinder of the several causes of action. Distinct torts of the same nature, and upon all of which the same judgment can be rendered, may be joined in separate counts in the same action, but not in one...