Wilson v. Stewart
Supreme Court of Alabama
Appeal from Oherolcee Circuit Court. Tried before Hon. Leroy E. Box. This was an action brought by the appellant against the appellee, and was commenced on 18th June, 1880. The original complaint contained three'counts, one in trover, and the other two in case.
Read the full summary
Appeal from Oherolcee Circuit Court. Tried before Hon. Leroy E. Box. This was an action brought by the appellant against the appellee, and was commenced on 18th June, 1880. The original complaint contained three'counts, one in trover, and the other two in case. The substance of the averments of the counts in ■case is that the plaintiff in the court below rented lands to one 'Tillery for and during the year 1879, and made advances to him during that year under the statute, to enable him to make :a crop; that Tillery made a crop of cotton on the rented premises during that year, which he…
1Opinion of the Court
BRICKELL, O. J.
The original complaint was in case, joining a count in trover. The amended complaint proposed to add the common counts in assumpsit, thereby causing a misjoinder, rendering the entire complaint subject to demurrer. For the rule of the common law remains unchanged, that counts ex contracta and counts ex delicto can not be joined.— Whilden v. M. & P. Nat. Bank, 64 Ala. 1. It may be the better practice would have been to put the defendant to his demurrer, but as that would of necessity have been sustained to the entire complaint, striking the amendment from the files is at most…
2Cases cited4 opinions
- Whilden & Sons v. Merchants' & Planters' National BankSupreme Court of Alabama · 1879
- Hussey v. PeeblesSupreme Court of Alabama · 1875
- Lavender v. HallSupreme Court of Alabama · 1877
- Stern v. SimpsonSupreme Court of Alabama · 1878
3Cited by7 opinions
- Kunz v. NelsonUtah Supreme Court · 1938
- Coleman v. SilerSupreme Court of Alabama · 1883
- City Nat. Bank v. NelsonSupreme Court of Alabama · 1926
- Hooper v. Farmers' Union Warehouse Co.Alabama Court of Appeals · 1924
- Smith v. East Tenn. Va. & Ga. R. R.Supreme Court of Alabama · 1893
2 more not listed; retrieve them via the Exa API.