Pate v. Bruner
| Decision Date | 07 January 1943 |
| Docket Number | 3 Div. 384. |
| Citation | 243 Ala. 648,11 So.2d 356 |
| Court | Alabama Supreme Court |
| Parties | PATE v. BRUNER. |
Rehearing Denied Jan. 28, 1943.
Howell P. Rogers, of Greenville, and Jos. R. Bell, of Hayneville for appellant.
D.M. Powell and Powell & Hamilton, all of Greenville, for appellee.
The bill was filed December 1, 1941, by the appellee, one of three joint owners or tenants in common of the lands described in the bill and designated generally as "the Bruner Lands", against the appellant Pate, not one of the joint owners, and seeks to recover damages in the form of a money decree, alleged to have accrued from the cutting by Pate of timber on said land and the conversion thereof to his use, to the damage of the complainant.
The original bill avers that, "During the years 1939 and 1940 the said C.A. Pate and his agent, servants and employees went on and upon said Bruner land and from time to time during said years cut and converted into lumber large quantities of the timber located and growing upon said lands. The quantity of timber so cut and converted into lumber was approximately 705,000 feet board measure. After said timber was sawn [sawed] into lumber the said C.A. Pate removed or caused the same to be removed from said Bruner land and converted the same to his own use, selling and disposing of the same for his own benefit.
"The foregoing averments as to entering upon said Bruner lands cutting, converting into lumber, removing the same and disposing of the same are made upon information and belief. * * *."
While complainant has general information that the said C.A. Pate committed the trespass, wrongs and injuries herein complained of during the years 1939 and 1940, he has no actual and accurate knowledge as to when they were committed. He has no accurate knowledge or information as to the number of trees cut or the quality of lumber into which they were converted and sawn [sawed], nor does he have knowledge or information as to the price the said C.A. Pate received for the lumber sawn [sawed] from the timber when sold by him in its finished condition. Complainant is without accurate knowledge of the quantity of timber cut, the character of the lumber into which it was sawn [sawed] and converted and the number of feet in said lumber, the quantity and character of the lumber and value and price of the same received by him. "Such information is peculiarly within the knowledge of the said C.A. Pate." [Brackets supplied.]
In aggravation of the damages claimed, the original bill alleges that the tortious taking and conversion of the timber was without complainant's knowledge or consent, and "were willful and intentional on the part of the said C.A. Pate." The bill prays for complete discovery as to the elements of the complainant's cause of action and the amount of the damages.
The defendant demurred to the original bill on grounds that,
This demurrer was overruled, and thereafter the complainant amended the bill by adding paragraph six thereto alleging, to state the substance of the amendment, that the timber was cut and manufactured into lumber and removed from the land as alleged in the original bill, but complainant is informed and from said information avers, that the defendant Pate claims that he cut the timber, manufactured it into lumber and removed or caused the same to be removed and sold under an agreement between Pate and C.C. Bruner, who at the time was joint-owner with complainant and T.M. Bruner, without complainant's knowledge, but who had no authority to dispose of the interests of complainant and T.M. Bruner.
The demurrer was refiled to the bill as amended, and was overruled, hence this appeal.
The original bill with the amendment amalgamated is a single pleading upon which the complainant's case must stand or fall. Hawkins et al. v. Tanner, Ala.Sup., 11 So.2d 351. And on demurrer its allegations will be construed most strongly against the pleader. Its sole purpose is to recover a money decree for the conversion of chattels,--timber and lumber. This is its only aspect, and the discovery prayed is a mere incident to support that aspect.
The complainant's...
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