Higdon v. Kennemer
Supreme Court of Alabama
Appeal from the Circuit Court of Jackson. Tried before the Hon. J. A. Bilbro. This was an action of debt brought by the appellant, T. H. Higdon, against the appellee, J. C. Kennemer, to recover the statutory penalty for cutting trees on the lands of another without the consent of the owner. The defendant filed a plea in answer to the complaint, in which he averred that he is not guilty of the matters alleged in the complaint.
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Appeal from the Circuit Court of Jackson. Tried before the Hon. J. A. Bilbro. This was an action of debt brought by the appellant, T. H. Higdon, against the appellee, J. C. Kennemer, to recover the statutory penalty for cutting trees on the lands of another without the consent of the owner. The defendant filed a plea in answer to the complaint, in which he averred that he is not guilty of the matters alleged in the complaint. On the trial of the cause, the plaintiff, as a witness in his own behalf, testified that at the time of the cutting complained of he was in possession &nd claiming title…
1Opinion of the CourtBrickell, C. J.
1. The proposed amendments of the complaint, were founded in a misconception of the nature and character of the action, and were properly disallowed. Though in form an action of debt, it is founded in fact on a tort — the trespass committed in the cutting @f the trees and saplings on the land of the plaintiff. For the trespass, the statute (Code, 1886, § 3296 ; Code, 1896, § 4137) inflicts penalties varying in amount with the character of the tree or sapling cut or destroyed. The statute not prescribing the remedy to be pursued for the recovery of the penalties, the common law principle *197applie…
2Cases cited16 opinions
- Riggs v. FullerSupreme Court of Alabama · 1875
- Whipple v. FullerSupreme Court of Connecticut · 1836
- Eagle & Phœnix Manufacturing Co. v. GibsonSupreme Court of Alabama · 1878
- Farley v. SmithSupreme Court of Alabama · 1863
- Dillingham v. BrownSupreme Court of Alabama · 1862
11 more not listed; retrieve them via the Exa API.
3Cited by13 opinions
- Jordan v. McClure Lumber Co.Supreme Court of Alabama · 1910
- Goodyear Tire & Rubber Co. of Alabama, Inc. v. Gadsden Sand & Gravel Co.Supreme Court of Alabama · 1946
- Sloss-Sheffield Steel & Iron Co. v. GreekSupreme Court of Alabama · 1924
- Long v. CummingsSupreme Court of Alabama · 1908
- Ray v. FarrowSupreme Court of Alabama · 1924
8 more not listed; retrieve them via the Exa API.