O'Neal v. Simonton

• Decision Date: 29 January 1896
• Citation: 19 So. 412,109 Ala. 167
• Court: Alabama Supreme Court
• Parties: O'NEAL v. SIMONTON.

19 So. 412

109 Ala. 167

O'NEAL v. SIMONTON.

Supreme Court of Alabama

January 29, 1896

Appeal from circuit court, Henry county; J. M. Carmichael, Judge.

Trespass by F. R. Simonton against W. C. O'Neal. There was a judgment for plaintiff, and defendant appeals. Affirmed.

The appellee, F. R. Simonton, brought an action of trespass against the appellant, W. C. O'Neal. The complaint was as follows: "The plaintiff claims of the defendant the sum of $500, damages for a trespass by the defendant on the following tract of land, to wit [here follows a description of the land], said land belonging to plaintiff, and being that portion of said lot above described which was taken possession of by the defendant on, to wit, the 23d day of March, 1894; and for tearing down, and removing therefrom, a frame building and twenty-five panels of plank fence, and tramping down and pulling up vegetables growing on said land and belonging to the plaintiff," etc. Upon the plea of not guilty the trial was had, and, upon a verdict being rendered for the plaintiff, the defendant moved the court in arrest of judgment, on the grounds (1) that the complaint fails to set forth and maintain a substantial cause of action; and (2) because the complaint fails to allege that the plaintiff was in possession of the property described in the complaint at the time of the alleged trespass. Upon the hearing of this motion, the court overruled the same, and rendered judgment for the plaintiff. The defendant appeals and assigns as error the overruling of the motion is arrest of judgment, and the rendition of judgment for the plaintiff.

Espy &amp Farmer and H. L. Martin, for appellant.

A. E Pace, for appellee.

COLEMAN J.

The appellee, Simonton, sued to recover damages for trespass to realty. After verdict for plaintiff, the defendant moved in arrest of judgment, that "the complaint failed to set forth and contain a substantial cause of action, in that it failed to allege the plaintiff was in possession of the property at the time of the alleged trespass." According to the form prescribed by statute for trespass to land, it is only necessary to aver that the land belonged to the plaintiff. If the plaintiff does not rely upon ownership, but possession merely, to sustain the action, the averment of possession is necessary, and will be sufficient as a complaint. Code 1886, p. 795. The complaint is sufficient to support a judgment, and, when...