Gilmer v. Wier

8 Ala. 72

• Court: Supreme Court of Alabama
• Decided: January 15, 1845
• Status: Published

Opinion

ORMOND, J.

The objection taken to the declaration is, that there is a misjoinder of counts. This objection rests upon the fact, that in one count of the declaration, the attachment is al-ledged to have been sued out by Gilmer, in his own name, and in two other counts, that in suing out the attachment, he described himself as the administrator of J. Waters, deceased. This is certainly not a misjoinder of counts. In all, he is proceeded against individually, and could not have been sued in any other mode. He could not be sued as the administrator of J. Waters, because describing himself as such, and to recover a debt due the estate, he improperly sued out an attachment; nor could he subject the estate to an action for damages by his tortious conduct. He was therefore liable to respond personally for the injury, and was properly sued in his individual character.

The statement in the declaration, is mere matter of description, which was not necessary, but which does not vitiate. The judgment must therefore be affirmed.