Slight v. Frix
Supreme Court of Alabama
Assumpsit. Appeal from Gadsden City Court. Heard before Hon. John H. Disqije. Attachment by C. R. Frix against J. H. Sligh, to enforce his lien for stumpage. Judgment for plaintiff and defendant appeals. — There was a variance between the complaint and the proof. Timber is not lumber. — Bobbins v. Otis, 1 Pick. 368; 22 A. & E. Ency.
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Assumpsit. Appeal from Gadsden City Court. Heard before Hon. John H. Disqije. Attachment by C. R. Frix against J. H. Sligh, to enforce his lien for stumpage. Judgment for plaintiff and defendant appeals. — There was a variance between the complaint and the proof. Timber is not lumber. — Bobbins v. Otis, 1 Pick. 368; 22 A. & E. Ency. P. & P. 598. For analoguous cases, see.— Stewart v. Tucker, 106 Ala. 319; Wilkerson v. King, 81 Ala. 156. The allegata and the probata must always correspond. — Thompson v. Richardson, 96 Ala. 488; C. of (}■ v. Simons, 150 Ala. 400. — The assumption' that there…
1Opinion of the CourtAnderson, J.
— It is insisted by the appellant that there was a fatal variance between the allegata and probata, that the complaint is for lumber sold, and the proof shows a sale of timber as distinguished from lumber. The suit was started by attachment, and the affidavit sets up a lien for stnmpage under section 4814 of the Code of 1907 for timber sold. It is true that the complaint charges for lumber sold; but it also claims under a lien for stumpage, under the statute, and which said statute gives a lien for timber sold. It is therefore manifest that the complaint attempted to conform to the affidavit,…
2Cited by7 opinions
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- Kingry v. McCardleSupreme Court of Alabama · 1957
- Winfield Lumber Co. v. PartridgeSupreme Court of Alabama · 1918
- Central of Georgia Ry. Co. v. WilliamsAlabama Court of Appeals · 1919
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