Snead v. Patterson

• Decision Date: 07 November 1914
• Docket Number: 678
• Parties: SNEAD v. PATTERSON.
• Court: Alabama Supreme Court

66 So. 664

190 Ala. 43

SNEAD v. PATTERSON.

No. 678

Supreme Court of Alabama

November 7, 1914

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by Drew B. Patterson against Jim Snead. From a judgment for plaintiff, defendant appealed to the Court of Appeals, and the cause was transferred to the Supreme Court. Affirmed.

Culli &amp Martin, of Gadsden, for appellant.

W.J Boykin, of Gadsden, for appellee.

MAYFIELD J.

The action is one to recover damages for the removal of a house from the lands of the plaintiff.

The original complaint consisted of two counts, one in detinue for the wrongful detention, and the other in trover, for the wrongful conversion, of the house. The complaint was amended so that the trial was had on two additional counts, each claiming damages as for injury to the freehold on account of the removal of the house therefrom.

It is insisted by appellant that the addition of these last two counts was not allowable, because a departure was thereby wrought. To this we do not agree. The amendment was allowable under our system of pleading; certainly so under our new statute on the subject (section 5329 of the Code), which provides as follows:

"All actions ex delicto may be joined in the same suit, and may be joined with actions ex contractu arising out of the same transaction, or relating to the same subject-matter, and the issues may be determined separately by the jury, and the proper judgment shall be rendered by the court and the costs fairly apportioned."

All the counts were ex delicto, and, of course, could have been joined originally; and there was no departure in adding the last two counts. While the actions set up in them were real actions, and those in the first two personal ones, they were all based upon the same wrongful act, and related to the same subject-matter and to the same parties, and could therefore be joined under our statutes. Prior to the adoption of the present Code the last two counts probably could not have been joined; but it is certain that they can be under the present Code.

There was really but one cause of action alleged in all the counts, though the form of the action was different. The cause of action upon which all the counts were based was the wrongful removal of a house from plaintiff's land. We feel sure the counts were properly joined, and that there was no departure. While these various actions could not be joined in one count, they could be in different counts, even if they had been separate causes of action. A.G.S.R. R. Co. v. Shahan, 116 Ala. 302, 22 So. 509; Code, § 5329.

There was evidence tending to support the cause of action alleged in each of the counts on which the trial was had; consequently there was no error in declining to give the affirmative charge for the defendant.

The trial court...