Miller-Brent Lumber Co. v. Lunday

• Decision Date: 17 February 1912
• Citation: 57 So. 722,175 Ala. 160
• Parties: MILLER-BRENT LUMBER CO. ET AL. v. LUNDAY.
• Court: Alabama Supreme Court

57 So. 722

175 Ala. 160

MILLER-BRENT LUMBER CO. ET AL. v. LUNDAY.

Supreme Court of Alabama

February 17, 1912

Appeal from City Court of Andalusia; A. L. Rankin, Special Judge.

Action by Henry Lunday against the Miller-Brent Lumber Company and others for trespass to land and personal property. From a judgment for plaintiff, defendants appeal. Affirmed.

The first, second, and fourth counts are in trespass to realty. The third count is as follows: "The plaintiff aforesaid claims of the defendant aforesaid the other and further sum of $1,000 damages for wrongfully taking the following goods and chattels, the property of the plaintiff, to wit, 3,000 pine rails and 3,000 pine boards."

Henry Opp and Coleman, Dent & Weil, for appellants.

Reid & Prestwood, for appellee.

SIMPSON, J.

The only assignment of error insisted on in this case is that the court erred in overruling the demurrer to count 3 of the complaint, and the only insistence is that said count was subject to the demurrer, in that it failed to allege the time when said trespass was committed, citing, in support of said contention, Snedecor v. Pope, 143 Ala. 275, 286, 39 So. 318. That was a case of trespass to realty, and the form of complaint on page 1199 of volume 2 of the Code of 1907 (form 26) so requires. But, in the case of trespass for taking personal property, no such requirement is made; and the said count 3 is in exact conformity to form 23, on the same page of the Code.

Said count 3 is for "wrongfully taking the following goods and chattels, the property of the plaintiff, viz., 3,000 pine rails and 3,000 pine boards." The count shows on its face that it is not for trespass to realty, but for taking personal property. Thornton v. Cochran, 51 Ala. 415.

There was no error in the ruling of the court, and the judgment of the court is affirmed.

Affirmed.

All the Justices concur.