Russell v. Russell

62 Ala. 48

• Court: Supreme Court of Alabama
• Decided: December 15, 1878
• Status: Published

Opinion

BRICKELL, C. J.

The statement of the cause of action, which a plaintiff is required to file, on an appeal or certiorari from the judgment of a justice of the peace, when the sum claimed exceeds twenty dollars, is not subject to the technical rules of pleading. If it discloses in general terms a breach of a contract, or a wrong done, of which the justice has jurisdiction, it is sufficient. — Hanks v. Hinson, 4 Port. 509 ; Spence v. Boyd, 2 Stew. 480; Morrison v. Morrison, 3 Stew. 444. The complaint or statement in this case would have been more formal if, following the form of complaint for trover in the Circuit Court, given by statute, it had averred the time of the conversion of the chattels. Whether the omission of such an averment would have been ground of demurrer, it is not necessary to inquire, as none was interposed. An averment of the precise time was not necessary. It was only necessary to state any day prior to the commencement of suit. — 1 Chit. Pl. 252. The want of such an averment is cured by the judgment in the absence of all objection in the Circuit Court. — Allen v. Dickson, Minor, 118 ; Walker v. Mobile Marine Ins. & Dock Co. 31 Ala. 529.

The relation between the parties was that of tenants in common of the crops grown on the lands cultivated by them. Thompson v. Mawhinney, 17 Ala. 362; Strather v. Butler, Ib. 733; Smyth v. Tankersley, 20 Ala. 212. If one tenant in common of a chattel, by a sale, converts it wholly to his own use, his companion may maintain an action of trover against him. — Parminter v. Kelly, 18 Ala. 716 ; Williams v. Nolen, 34 Ala. 167. One of the co-tenants may, by an agreement express or implied, with his cotenant, be entitled to contribution for services rendered or expenditures made. — Strother v. Butler, supra. The share of the co-tenant, the amount he ought to contribute, would be recoverable in an' action of assumpsit, and would be the matter of set-off in an action ex contractu. Trover is an action for a tort, and a set-off is not available in its defense. — Pattison v. Richards, 4 E. D. Smith, 162 Moore v. Davis, 11 Johns. 144; Pattison v. Richards, 22 Barb. 143. The charge of the court was not in any event prejudicial to the appellant.

Affirmed.