Harris v. Sanders

| Ala. | Apr 23, 1914

MAYFIELD, J. —

Appellees sued appellant and one Jim Campbell. The complaint contained one count which was in words and figui;es as follows: “The plaintiffs claim of the defendants seventy-five ($75.00) dollars, due by account for services rendered as physicians and surgeons at the request and instance of defendants on the 3d day of March, 1911, which said amount with the interest thereon is still unpaid.” The trial was had on the general issue, and judgment was rendered for plaintiffs, against appellant, for $87. Judgment was rendered for the defendant Jim Campbell. The cause Avas tried by the court without a jury, and a special finding was had, to which some exceptions Avere reserved; and the defendant Harris appeals.

The record has been carefully examined, and we do not think that either the evidence or the special finding .is sufficient to support the judgment rendered. The action was a joint one by the appellees, against the appellant and Jim Campbell, and we do not think that either the proof or the finding was such as to support the joint action alleged in the complaint. The variance was fatal.—Cocciola Co. v. Wood-Dickerson Co., 152 Ala. 283" court="Ala." date_filed="1907-07-02" href="https://app.midpage.ai/document/cocciola-v-wood-dickerson-supply-co-7362982?utm_source=webapp" opinion_id="7362982">152 Ala. 283, 44 So. 541" court="Ala." date_filed="1907-07-02" href="https://app.midpage.ai/document/montgomery-traction-co-v-state-7362714?utm_source=webapp" opinion_id="7362714">44 South. 541; Garrison v. Hawkins, 111 Ala. 311, 20 South. 427, and cases cited.

Reversed and remanded.

Anderson, C. J., and Somerville and Gardner, JJ., concur.