Southern Railway Co. v. McIntyre

44 So. 624, 152 Ala. 223, 1907 Ala. LEXIS 72

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

Opinion

ANDERSON, J.-

Whether the amendment was within the lis pendens, and related back to the original complaint, or not, if properly made as a separate and distinct count, we need not decide, as its being added to the first count as a part thereof rendered the count as amended bad, and subject to the demurrer. A count which unites several distinct causes of action is bad, notwithstanding they might be joined in one complaint in separate and distinct counts. — Iron City Mining Co. v. Hughes, 144 Ala. 608, 42 South. 39; A. G. S. R. R. Co. v. Shahan, 116 Ala. 302, 22 South. 509; L. & N. R. R. Co. v. Cofer, 110 Ala. 491, 18 South. 110; Railroad Co. v. Dusenberry, 94 Ala. 413, 10 South. 274; Offield v. Wabash R. R., 22 Mo. App. 607; S. & M. Ry. v. Buford, 106 Ala. 303, 17 South. 395. The original count charges a trespass upon plaintiff’s land, and the amendment seeks to recover damages for interfering with travel to and from the plaintiff’s land by the erection of an embankment (not on plaintiff’s land) npon the street near to the plaintiff’s property. Nor does the complaint aver that plaintiff was in tbe possession of the street.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

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