55 So. 1015 | Ala. Ct. App. | 1911
This is an action of trover, brought, originally, by the appellant against the Dreher Manufacturing Company, a corporation, A. Dreher, Jr., and Emmett Loyd, but the complaint was finally amended by striking out the names of all the parties defendant except said Emmett Loyd. This last amendment was made at the close of the evidence, and the court gave the general affirmative charge in favor of said defendant.
The contention of the appellees, in which the court seems to have concurred, is that inasmuch as the original complaint alleged a joint conversion, no recovery could be had against one of the defendants alone, but that the recovery must be upon a joint conversion or not at all.
It is not necessary to discuss the evidence as to whether or not it really affords an inference that the taking of the timber was the joint act of the parties. Our decisions are clear to the point, that in the action of. tro
In the Mansell Case, supra, where it was held that there was a variance between the allegations and the proof, because it was an action ex delicto, “growing out of a contract” by which alone was created the relation giving rise to the duty, the court said: “This is not opposed to the doctrine which ordinarily, in actions of tort brought against several, makes possible a recovery against less than the whole number of defendants” (page 564 of 138 Ala., page 464 of 36 South).
The case of Larkins & Moore v. Echwurzel, 42 Ala. 322, 94 Am. Dec. 651, Powell v. Thompson, 80 Ala. 51, and Richmond & Danville R. R. Co. v. Greenwood, 99 Ala. 501, 509, 511, 14 South. 495, 498, 499,.hold merely that a joint judgment cannot be maintained against several persons for separate and several trespasses; and in the last-named case, there being no demurrer to the complaint, which ascribed the wrong “to the concurring wrong of both defendants,” the court says.: “The complaint here alleges a joint and several liability of these defendants for the result of their separate and distinct, but concurring and coacting, negligence. Its sufficiency was not tested by demurrer, but both defendants pleaded the general issue, thereby admiting its adequacy as a
In the case of Torrey v. Forbes, 94 Ala. 135, 140, 10 South. 320, 322, which was overruled by the Strickland v. Wedgaworth Case, supra, as to the point that a dismissal as to one defendant discontinued the case as to the other, the court, while holding erroneously that a discontinuance resulted in that case, yet recognized the general principle that, “where the proof showed that plaintiff has no just cause of action as against such defendant, an amendment by dismissing as to him, or by striking his name out of the complaint, will not operate to discontinue the cause” citing a number of cases.
It results that the court erred in giving the general charge in favor of the defendant.
The judgment of the court is reversed and the cause remanded.
Reversed and remanded.
Note. — The foregoing opinion was prepared by Mr. Justice Simpson, of the Supreme Court, before the transfer of the case to this court, and was adopted by this court.
