Gulf Yellow Pine Co. v. Urquhart

44 So. 555, 151 Ala. 452, 1907 Ala. LEXIS 567

• Court: Supreme Court of Alabama
• Decided: July 2, 1907
• Status: Published

Opinion

ANDERSON, J.

While section 3293 of the Code of 1896 authorizes the joinder of trespass and trover, it is only permissible when they relate to the same subject-matter.” In the case at bar one count is in trover for the conversion of certain logs, and the other is trespass quare clasum fregit, and not trespass de bonis asportatis. It is difficult to conceive ail instance when trover and trespass quare clasum fregit can relate to the same subject-matter. The former is for the conversion of personal property, and the latter is for the unlawful or unauthorized entry on land, or for a violent and forcible injury to real property; the measure of damage being the diminution in the value of the realty. On the other hand, there are many instances when trover and trespass de bonis asportatis would relate to the same subject-matter, and would fall under the influence of the statute authorizing a joinder, but which does not authorize a joinder of trover and trespass quare classum fregit, for the reason that they are so dissimilar that they cannot relate to the same subject-matter. It is true there is an averment that the “wrongs complained of in each count relate to the same subject-matter”; but this is a mere conclusion, and the counts upon their face do not relate to the same subject-matter. One relates to an injury to realty alone, and one to a conversion of personal property. The trial court erred in not sustaining the demurrer to the amended complaint, and the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and McClellan, J.J., concur.