Scarbrough v. Rowan

McCLELLAN, C. J This action is by Rowan v. Scarbrough. The complaint is as follows: “The plaintiff claims of the defendant seventy-two 'and 60-100 dollars due for the conversion by him of one. bale of lint cotton weighing 510 pounds, on the 22d day of October, 1897, and of two bales of lint cotton weighing 473 pounds each, on the 18th day of November, 1897. The plaintiff avers that one H. G. Wilson was the tenant of S. L. Oook during the year 1897, and said Cook assigned to plaintiff for said year her lien as landlord for rent. And plaintiff avers that the said above described cotton was grown on the lands rented by Wilson from Cook, and the rent not having been paid, plaintiff by said assignment, succeeded to the rights of said Oook, and yet, while the landlord’s lien was still in existence unsatisfied, the said defendant converted the said cotton to his own use.” There are several minor defects in this complaint which would be waived by plea; but there is one defect which no plea could cure and no failure to demur would waive: It does not state a cause of action. It affirmatively shows that the plaintiff did not have title to the cotton, and hence no case is made for recovery in trover. And it fails utterly to aver that plaintiff’s lien has been lost, or destroyed, or even impaired by defendant’s alleged conversion of the cotton, and hence no cause of action in case is- stated, for • there may well have been a conversion to defendant’s own use of cotton, which, the defendant still having possession of it, would not destroy the plaintiff’s lien nor impede him in its effectuation. — Hussey v. Peebles, 53 Ala. 432; McCarty v. Rosewald & Co., 105 Ala. 511. The complaint containing no cause of action, the court might have charged the jury without hypothesis to find for the defendant; no sort of proof could inject life into plaintiff’s case, so as to have entitled him to a judgment. If a judgment had been entered for him, this court would have reversed it. Judgment having been rendered for the defendant, the circuit court erred in setting it aside and awarding a new trial. The judgment on the motion for a new trial must be-reversed; and a judgment will be 'here entered denying-and dismissing said motion; •• ■ ■ Reversed and rendered.