O'Reilly v. Masterson
Alabama Court of Appeals
Appeal from Franklin Circuit Court. Heard before Hon. C. P. Almon. Action by Ella Masterson and others against P. O’Reilly for the statutory penalty for cutting or destroying trees. Judgment for plaintiff in a sum less than $50, and defendant appeals.
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Appeal from Franklin Circuit Court. Heard before Hon. C. P. Almon. Action by Ella Masterson and others against P. O’Reilly for the statutory penalty for cutting or destroying trees. Judgment for plaintiff in a sum less than $50, and defendant appeals. The Court below erred in taxing the costs of the case to the defendant, if the case should be held to be in tort. — Code of Alabama, Sec. 3663; Quttery v. Boshell, 132 Ala. 596; Harden v. Maddox, 141 Ala. 506. The Court below erred in rendering judgment against the defendant below in any sum whatever, if the suit was on a moneyed demand. The…
1Opinion of the CourtWalker, P. J.
This was an action of debt for the recovery of the statutory penalty for destroying, injuring, or removing trees.—Code, § 6035; Higdon v. Kennemer, 120 Ala. 193, 24 South. 439. To such an action the statute (Code, § 5355), applies which requires that if a suit be brought on a moneyed demand “for an amount of which the court has jurisdiction, and a less sum be recovered, unless the amount is reduced by a set-off successfully made by the defendant, the judgment must be set aside and the snit dismissed, unless the plaintiff, or some one for him, make affidavit, which must be filed in the cause,…
2Cases cited2 opinions
- Higdon v. KennemerSupreme Court of Alabama · 1897
- Smith v. AllenSupreme Court of Alabama · 1904
3Cited by2 opinions
- Buckner v. VaughtAlabama Court of Appeals · 1912
- T. L. Farrow Mercantile Co. v. JeffersAlabama Court of Appeals · 1918