Allison v. Little

93 Ala. 150 | Ala. | 1890

McCLELLAN, J.

— On the former appeal in this cause, two-defects in the plea of former recovery were pointed out, each of which was held to justify the action of the trial court in sustaining a- demurrer to it. The defect to which most prominence was given lay in the want of identity of the parties-plaintiff in the former suit and in this. “The defect about this plea,” said Somerville, J., “is that the party plaintiff in that suit and the party plaintiff in this suit are not the same.” -A secondary, or cumulative infirmity, was the failure of the plea to aver that the plaintiff in the first action was the owner, or in possession of the locus in quo. This last defect was, it may be conceded, cured by amendment after the cause was remanded; but the first was not. On the contrary, it very clearly appears by the plea, as set out. in the present record, that the plaintiffs in the two actions are not the same persons, nor representative of the ' same parties litigant. The case is not changed in this respect, in legal contemplation, since the point was ruled against the appellant on the former appeal; and we have no alternative, following that adjudication, but to sustain the action of the Circuit Court on the demurrer to the amended plea. — Allison v. Little, 85 Ala. 512.

Among others, the defendant interposed the following pleas: “4th. The defendant further pleads that the plaintiffs were not in the possession of the land upon which said trespasses are alleged to have been committed, at the time of said alleged trespass and cutting of said trees;” and, “5th, defendant pleads that the plaintiffs were not trustees, as they allege, at the time of said alleged trespass.” Now the right of action given by the statute (Code, §§ 3296-9) is to the owner, and it is wholly immaterial whether he be in possession at the time of the trespass or not; and the title of trustees appointed after the trespass relates back to that time, and it is of no moment that they were not in fact trustees at the date of the wrong and injury. So that each of these jileas presented an immaterial issue. Each of them might, and doubtless would, have been stricken out on motion. Neither of them could have stood against a demurrer. But no motion to strike out was made, and no demurrer challenging their sufficiency as a defense to the action was interposed. On the contrary, the jilaintiffs accepted the issues they tendered, and went to trial upon them. There was evidence tending to jirove that they had not been apjiointed trustees prior to, and were not in jiossession of the land at the time of, the cutting of the trees. The special charge given at the instance of the plaintiffs authorized a recovery without regard to either of these issues; and two instructions requested by the defendant, addressed to the inquiry as to whether plaintiffs were trustees at the time of the trespass, and directing a verdict for the defendant if the jury should find they were not, were refused. The action of the court in giving this charge for jilaintiffs, and in refusing-each of these two to defendant, involved errors which must operate a reversal of the judgment.' As was said in McKinnon v. Lessley, 89 Ala. 625, “The doctrine is too well and has been too long established in this court, that, if the parties make up a false issue, evidence must be received upon it, and it must be submitted to the jury, to be now questioned.— Watson v. Brazeale, 7 Ala. 451; Masterson v. Gibson, 56 Ala. 56; Mudge v. Treat, 57 Ala. 1; Ex parte Pearce, 80 Ala. 195.” See, also, Agnew v. Walden, 84 Ala. 502; Ga. Pac. Railway Co. v. Propst, 90 Ala. 1; Crescent Brewing Company v. Handley, 90 Ala. 486.

The remaining assignments of error are without merit.

Reversed and remanded.