78 Miss. 912 | Miss. | 1901
delivered the opinion of the court.
Mrs. Mattie Darrill, owning a one-third interest in the south half of the north half of section 34, township 21, range 3, west, in Sunflower county, sued R. E. Dodds & Bros., the first count being in debt and claiming therein the sum of $3,735, the statutory penalty for cutting down and carrying away from said land forty-four ash trees and 205 oak trees at fifteen dollars per tree; the second count being in assumpsit for the sale of said trees by plaintiff to defendants for a reasonable price, and alleging said trees to be reasonably worth $3,735. The defendants had a verdict and judgment by reason of a peremptory instruction, and the case is here by appeal.
Insistence is made here for the first time in support of the judgment that the co-tenant of Mrs. Darrill should have been joined with her in the action, whether in debt for the penalty or in assumpsit for the reasonable value of the trees.- If such point had been made in the court below, the plaintiff could have easily remedied the matter by amending the complaint and adding the name of her co-tenant as a joint plaintiff; by reason of § 664 annotated code, a defect by nonjoiner of plaintiffs is-waived unless made in writing in the circuit court before the trial commences.
The trial judge has not specified upon what ground the peremptory instruction was given, and we are left to determine
But the plaintiff did not show a possession of the land from which the trees were cut, and this defect in her proof entitled the defendants to a verdict. To maintain trespass or debt for the statutory penalty in the commission of the trespass, the plaintiff must have possession or title. A title being shown,
Affirmed.