Henry v. Milner

Supreme Court of Alabama

Henry v. Milner

85 So. 500, 204 Ala. 226, 1920 Ala. LEXIS 101

CourtSupreme Court of Alabama

DecidedApril 22, 1920

Docket8 Div. 246.

StatusPublished

Cited by1 cases

This text of 85 So. 500 (Henry v. Milner) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Henry v. Milner, 85 So. 500, 204 Ala. 226, 1920 Ala. LEXIS 101 (Ala. 1920).

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Opinion

*227 GARDNER, J.

Each count of the complaint is considered as a statement of a different cause of action.” It is often proper, to avoid unnecessary repetition, that one count should refer to the other, but if there is no express reference the several counts are considered as distinct, as if contained in separate declarations. Bryant v. Southern Ry. Co., 137 Ala. 488, 34 South. 562.

[2] This cause was tried upon count 3, as shown in the statement of the case. Doubtless counsel were under the impression that it contained some reference to, and adoption of, some portion of other counts which -had been eliminated. However that may be, no such reference is made in the count, and we are not at liberty to supply the omission, for we can only determine the cause upon the record before us. As the count stands, it claims no amount of damages, does not show who sustained any injury, or whether the injury was to person or property. It requires no argument to show that, as framed, the count does not state a cause of action. There were demurrers, sufficiently directing attention -to the incomplete and indefinite condition of this count, which should have been sustained. But, in any event, the judgment must be reversed. L. & N. R. Co. v. Williams, 113 Ala. 402, 21 South. 938; Jordan v. N. C. & St. L. Ry. Co., 131 Ala. 219, 31 South. 566.

Reversed and remanded.

ANDERSON, C. J., and McCDELLAN and SAYRE, JJ., concur.

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*227 GARDNER, J.

Each count of the complaint is considered as a statement of a different cause of action.” It is often proper, to avoid unnecessary repetition, that one count should refer to the other, but if there is no express reference the several counts are considered as distinct, as if contained in separate declarations. Bryant v. Southern Ry. Co., 137 Ala. 488, 34 South. 562.

[2] This cause was tried upon count 3, as shown in the statement of the case. Doubtless counsel were under the impression that it contained some reference to, and adoption of, some portion of other counts which -had been eliminated. However that may be, no such reference is made in the count, and we are not at liberty to supply the omission, for we can only determine the cause upon the record before us. As the count stands, it claims no amount of damages, does not show who sustained any injury, or whether the injury was to person or property. It requires no argument to show that, as framed, the count does not state a cause of action. There were demurrers, sufficiently directing attention -to the incomplete and indefinite condition of this count, which should have been sustained. But, in any event, the judgment must be reversed. L. & N. R. Co. v. Williams, 113 Ala. 402, 21 South. 938; Jordan v. N. C. & St. L. Ry. Co., 131 Ala. 219, 31 South. 566.

Reversed and remanded.

ANDERSON, C. J., and McCDELLAN and SAYRE, JJ., concur.

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85 So. 500, 204 Ala. 226, 1920 Ala. LEXIS 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-milner-ala-1920.

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