Wright v. Sample

Decision Date24 May 1909
Citation50 So. 268,162 Ala. 222
PartiesWRIGHT v. SAMPLE.
CourtAlabama Supreme Court

Rehearing Denied June 30, 1909.

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by R. H. Sample against John L. Wright and another. Judgment for plaintiff, and defendant John L. Wright appeals. Affirmed.

The suit was originally begun against John L. Wright and Laura F Wright. It seems that after the filing of the complaint an amendment was allowed striking Laura F. Wright as a party defendant. Upon this amendment being allowed, appellant John Wright moved for a discontinuance, which was overruled. Subsequent to this amendment, and before the trial, another amendment was filed reinstating Laura F. Wright as a party defendant, and on this complaint as last amended the trial was had, resulting in a judgment against both defendants which was subsequently amended by the court setting aside the judgment as to Laura F. Wright. John Wright takes this appeal alone.

E. M Russell and Wert & Lynn, for appellant.

John R. Sample, for appellee.

ANDERSON J.

This action was brought, under section 6037 of the Code of 1907, for the statutory penalty for destruction of or injury to fruit trees. Actions of this character, though technically actions of debt, are not for debts contracted, but are actions for a tort. Crawford v. Slaton, 133 Ala. 393, 31 So. 940.

The rule is well settled in this state that in actions ex delicto the plaintiff may discontinue as to one or more defendants, and maintain his action against the remaining defendants, without discontinuing the entire action. Strickland v. Wedgworth (Ala.) 45 So. 653, wherein the case of Torrey v. Forbes, 94 Ala. 135, 10 So. 320, was explained and qualified.

The trial court did not err in declining to discontinue the cause, at the instance of the appellant, John L. Wright, because the suit was dismissed as to his codefendant. Nor can this appellant complain that his codefendant was subsequently reinstated as party defendant and a judgment rendered against her, which was subsequently vacated.

The appellant further insists that the trial court erred in refusing the general charge requested, because there was no proof that the trees were removed from an inclosure. The proof showed that the trees were taken from the yard and orchard, which showed prima facie an inclosure. "Orchard" is defined by Webster as meaning, among other things, "an...

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3 cases
  • Walker v. St. Louis-San Francisco Ry. Co.
    • United States
    • Alabama Supreme Court
    • April 8, 1926
    ...Southern Ry. Co. v. Arnold, 162 Ala. 570, 575, 578, 50 So. 293; Supreme Lodge, etc., v. Gustin, 202 Ala. 246, 80 So. 84; Wright v. Sample, 162 Ala. 222, 50 So. 268; Strickland v. Wedgeworth, 154 Ala. 654, 45 So. Witcher v. Brewer, 49 Ala. 121, 122; Northern Ala. Ry. Co. v. Mansell, 138 Ala.......
  • Roman v. Dreher
    • United States
    • Alabama Court of Appeals
    • June 6, 1911
    ...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, 36 459; Southern Ry. Co. v. Arnold, 162 Ala. 570, 578, 50 So. 293; Witcher v. B......
  • Louisville & N.R. Co. v. Weathers
    • United States
    • Alabama Supreme Court
    • June 10, 1909

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