Sudduth v. Central of Georgia Ry. Co.

73 So. 28, 197 Ala. 393, 1916 Ala. LEXIS 106

• Court: Supreme Court of Alabama
• Decided: November 23, 1916
• Status: Published

Opinion

ANDERSON, C. J.

(1) Counts 1 and 2, if .not otherwise bad, each attempt to recover both as for trespass and case.

“A count which unites several distinct causes of action is bad, notwithstanding they might be joined in one complaint in separate and distinct counts.” — S. R. R. Co. v. McIntyre, 152 Ala. 223, 44 South. 624, and cases there cited.

(2) Counts 3 and 4 fail to state a cause of action besides being subject to specific grounds of demurrer. They do not charge that the plaintiff was in possession of the premises upon which the defendant laid its track, and the only theory upon which the plaintiff could recover would be as an abutting owner under section 235 of the Constitution, yet damage is not claimed to the plaintiff’s property as a result of the laying of the track, but as a result of the operation of the road, and section 235 has no application to the operating of the ways or works as distinguished from a construction or enlargement of same. — Hamilton v. Alabama Power Co., 195 Ala. 438, 70 South. 737.

(3) We do not hold that counts 5 and 6 are good and not subject to an appropriate ground of demurrer, but the trial court sustained only the thirteenth ground of same, which was that said counts show on their face that they are barred by the statute of limitations of one year, and overruled all other grounds of demurrer to said counts 5 and 6. The defense of the statute of limitations, if it exists, should be made by plea, and not by demurrer in courts of law. — Curry v. So. R. R., 148 Ala. 57, 42 South. 447, and cases there cited.

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

Beversed and remanded.

Mayfield, Somerville, and Thomas, JJ., concur.