Roman v. Dreher
| Decision Date | 06 June 1911 |
| Citation | 1 Ala.App. 429,55 So. 1015 |
| Parties | ROMAN v. DREHER ET AL. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.
Action by S. Roman, trustee, against the Dreher Manufacturing Company and others. From a judgment for defendant Emmett Loyd, rendered after amending the complaint by striking out the names of the codefendants, plaintiff appeals. Reversed and remanded.
J. B Brown, for appellant.
A. A. Griffith, for appellees.
This is an action of trover, brought, originally, by the appellant against the Dreher Manufacturing Company, a corporation, A Dreher, Jr., and Emmett Loyd, but the complaint was finally amended by striking out the names of all the parties defendant except said Emmett Loyd. This last amendment was made at the close of the evidence, and the court gave the general affirmative charge in favor of said defendant.
The contention of the appellees, in which the court seems to have concurred, is that inasmuch as the original complaint alleged a joint conversion, no recovery could be had against one of the defendants alone, but that the recovery must be upon a joint conversion or not at all.
It is not necessary to discuss the evidence as to whether or not it really affords an inference that the taking of the timber was the joint act of the parties. Our decisions are clear to the point, that in the action of trover, as in other actions ex delicto, a judgment may be rendered against one of the defendants alone, and when the evidence makes out a case against only one, it is proper, under our statutes of amendment, to allow the complaint to be amended by striking out the other parties, and permit judgment against the one. Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653; Wright v. Sample, 162 Ala. 222, 224, 50 So. 268; N. Ala. Ry. Co. v. Mansell, 138 Ala. 561, 36 So 459; Southern Ry. Co. v. Arnold, 162 Ala. 570, 578 50 So. 293; Witcher v. Brewer, 49 Ala. 121, 122; 21 Ency. Pl. & Pr. p. 1054, subd. 5, also page 1124, subd. 3.
In the Mansell Case, supra, where it was held that there was a variance between the allegations and the proof, because it was an action ex delicto, "growing out of a contract" by which alone was created the relation giving rise to the duty, the court said: "This is not opposed to the doctrine which ordinarily, in actions of tort brought against several, makes possible a recovery against less than the whole number of defendants" (page 564 of 138 Ala. page 464 of 36 South.).
The cases of Larkins & Moore v. Echwurzel, 42 Ala. 322 94 Am. Dec. 651, Powell v. Thompson, 80 Ala. 51, and Richmond & Danville R. R. Co. v. Greenwood, 99 Ala. 501, 509, 511, 14 So. 495, 498, 499, hold merely that a joint judgment cannot be maintained against several persons for separate and several trespasses; and in the last-named case, there being no demurrer to the complaint, which ascribed the wrong "to the concurring wrong of both defendants," the court says: ...
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