139 Ala. 502 | Ala. | 1903
The complaint in this case contained two counts; one for the statutory penalty for cutting trees, and the other for trespass. The record does not show what pleas were filed. The judgment recites that issue was joined, and a verdict in favor of the defendant was rendered. As a general proposition, in sfich case, it will be presumed that only the general issue was pleaded.' — Hatchett v. Molton, 76 Ala. 410; Odum v. R. & J. R. R. Go., 94 Ala. 488. But as an exception to this general rule when the bill of exceptions shows that the issue was on a special plea, and the cause was so treated and tried by the parties, — see McLendon v. Grice, 119 Ala. 513; Brinson v. Edwards, 94 Ala. 431; 1 Brick. Dig. 781, §§ 122-3. In the present case, the cause was submitted to the jury on an agreed statement of facts, and upon Avhieh the court, at the request of the defendant in writing, gave the general affirmative charge to find for the defendant, and to which the plaintiff! duly excepted. It is immaterial whether we presume that the cause was tried on the plea of the general issue, or on a proper plea of justification, the result here would be the same, on the evidence contained in the agreed statement of facts.
Under the agreed statement of facts two inferences were open to the jury. One that the defendant cut the trees under the bona fide belief and claim that he had the right to do so under the order of the court; and the other, that his act was not under such bona fide belief and claim. If the former he was not liable under the first count in the complaint. — While, McLane & Morris v. Farris, 124 Ala. 461. If the latter, and the cutting was knowingly and willfully done, he would be liable.
As to the second count, which was in trespass, the rule is well settled that the judgment of a court void for want of jurisdiction in the court to render the judgment, will not justify a trespass committed under it, even though the writ issuing on such void judgment be regular on its face. — Albright v. Mills, 86 Ala. 328; Moles v. State, 21 Ala. 672; Sasnett v. Weathers, 21 Ala. 673.
The court erred in giving the affirmative charge for the defendant, and for this error the judgment must be reversed and the cause remanded.
Reversed and remanded.
