Wright v. Sample

50 So. 268, 162 Ala. 222, 1909 Ala. LEXIS 367

Opinion

ANDERSON, J.

This action was brought under section 6037 of the Code of 1907, for tbe statutory penalty for destruction of or injury to fruit trees. Actions of this character, though technically actions of debt, are not for debts contracted, but are actions for a tort.— Crawford v. Slaton, 133 Ala. 393, 31 South. 940.

Tbe rule is well settled in this state that in actions ex delicto tbe plaintiff may discontinue as to one or more • defendants, and maintain bis action against tbe remain ing defendants, without discontinuing the entire action. — Strickland v. Wedgworth, 154 Ala. 654, 45 South. 653, wherein the case of Torrey v. Forbes, 94 Ala. 135, 10 South. 320, was explained and qualified.

The trial court did not err in declining to discontinue the cause, at the instance of the appellant, John L. Wright, because the suit was dismissed as to his co-defendant. Nor can this appellant complain that his co-defendant was subsequently reinstated as party defendant and a judgment rendered against her, which was subsequently vacated.

The appellant further insists that the trial court erred in refusing the general charge requested, because there was no proof that the trees were removed from an inclosure. The proof showed that the trees were taken from the yard and orchard, which showed prima facie an inclosure. “Orchard” is defined by Webster as meaning, among other things, “an inclosure containing fruit trees,” etc. Yard: “The word ‘yard’ by common and current acceptance is an inclosure,” etc. — Cook v. Lowe, 60 N. Y. Supp. 614, 44 App. Div. 239; State v. Bugg, 66 Kan. 668, 72 Pac. 236.

The judgment of the law and equity court is affirmed.

Dowdel, C. J., and Simpson and McClellan, JJ., concur.