Gulf Yellow Pine Co. v. Urquhart

• Decision Date: 02 July 1907
• Citation: 44 So. 555,151 Ala. 452
• Parties: GULF YELLOW PINE CO. v. URQUHART.
• Court: Alabama Supreme Court

44 So. 555

151 Ala. 452

GULF YELLOW PINE CO. v. URQUHART.

Supreme Court of Alabama

July 2, 1907

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Action by Nancy Urquhart against the Gulf Yellow Pine Company. The first count is trover for conversion of 146 pine trees, the second count for damages to certain land by cutting certain trees, and count 3 is also for entry and cutting. Demurrers were interposed, setting up a misjoinder; but these demurrers were overruled. Issue was joined on the general issue and a special plea not necessary to be here set out, and resulted in a verdict for the plaintiff in the sum of $50; and the defendant appeals. Reversed and remanded.

W. O. Mulkey, for appellant.

R. P. Coleman and Espy & Farmer, for appellee.

ANDERSON, J.

While section 3293 of the Code of 1896 authorizes the joinder of trespass and trover, it is only permissible when they relate to the same subject-matter." In the case at bar one count is in trover for the conversion of certain logs, and the other is trespass quare clausum fregit, and not trespass de bonis asportatis. It is difficult to conceive of an instance when trover and trespass quare clausum fregit can relate to the same subject-matter. The former is for the conversion of personal property, and the latter is for the unlawful or unauthorized entry on land, or for a violent and forcible injury to real property; the measure of damage being the diminution in the value of the realty. On the other hand, there are many instances when trover and trespass de bonis asportatis would relate to the same subject-matter, and would fall under the influence of the statute authorizing a joinder, but which does not authorize a joinder of trover and trespass quare clausum fregit, for the reason that they are so dissimilar that they cannot relate to the same subject-matter. It is true there is an averment that the "wrongs complained of in each count relate to the same subject-matter"; but this is a mere conclusion, and the counts upon their face do not relate to the same subject-matter. One relates to an injury to realty alone, and one to a conversion of personal property. The trial court erred in not sustaining the demurrer to the amended complaint, and the judgment is reversed, and the cause is remanded.

Reversed and remanded.

TYSON, C.J., and DOWDELL and McCLELLAN, JJ., concur.