157 So. 460 | Ala. | 1934
The complaint is in Code form for trespass in taking goods (section 9531, Code 1923, form 25) and is sufficient. Wilkinson v. Searcy,
This Code form seeks damages of the defendant for "wrongfully taking" the goods therein described. As we understand the opinion of the Court of Appeals in the instant case, interpreting and following the former decision of Singer Sewing Machine Co. v. Hayes,
In this holding we find ourselves unable to agree. The wrongful taking charged in the complaint embraces, in such a case, unlawful force in the taking and no other averments are necessary. Indeed, under such circumstances, it appears the unlawful force forms the essential element of the trespass, as disclosed by a consideration of our decisions.
In Street v. Sinclair,
And in Burns v. Campbell,
"Trespass is the unlawful or wrongful interference with the possession of another; the gist of the action being the disturbance of the possession." Pollard v. Pollard,
We, therefore, conclude the Court of Appeals has fallen into error in holding the complaint, which is in Code form, is insufficient to sustain a recovery where the evidence discloses a taking by "unlawful force, in the exercise of a legal right," to use the language of the opinion. However, our disagreement, as indicated, does not result in awarding the writ of certiorari as prayed. This for the reason the Court of Appeals has reversed the judgment upon other grounds — exclusion of evidence — concerning which no complaint is here made.
The writ will therefore be denied.
Writ denied.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.