Williams v. McKissack

SHARPE, J. This action was begun in June, 1893, by the filing of a complaint containing a single count declaring for the conversion of a mule and wagon occurring in February, 1893. A second count was added to the complaint bv amendment made in April, 1899, declaring the conversion of a mule of the same description as that referred to in the original complaint. The evidence was all directed to showing a conversion by the defendant of the mule and wagon on the last named date. Only those assignments of error which relate to the giving and refusal of charges are here insisted on. To [547] dispose of them it would be sufficient to say that the 3d plea, wherein the defendant sought to justify under section 1903 of the Code, was 'completely proven by the evidence in which there was no conflict and, therefore, the court should have given the general affirmative charge requested by the defendant. The legal sufficiency of the plea is not brought in question by a joinder upon it of issue of fact, and when issue is so taken upon a plea which goes to the whole complaint if the plea is sustained by the proof, the defendant is entitled to a verdict in his favor. From the identity of the first and second counts in respect of the nature of the action and the description of the mule, it will be presumed prima, facie, at least, that the conversion declared on in the second count is the same as that for which the suit was originally brought. The effect of the amendment is only ¡to lay the same conversion at different times, and thereby to prevent a variance between the pleading and the proof. The general rule that an amendment which introduces no new matter or cause of action but merely varies averments of the original complaint about matters already in suit, relates to the bringing of the action so that the statute of limitations runs against the amended complaint only to that time. — King v. Avery, 37 Ala. 169; Dowling v. Blackman, 70 Ala. 303; L. & N. R. R. Co. v. Woods, 105 Ala. 561. In respect of the time of the alleged conversion, variance appears between the evidence and the first count, which is fatal to the right of recovery under that count. To have such a. right the plaintiff was bound to prove the time as alleged with certainty. — Andrews’ Stephens on Pledges, p. 333. The wagon was not included in the second count and for that additional reason it should not have been recovered for. Since if does not affect the result of this appeal, and as the question may be saved by a further amendment <>r the complaint, we need not consider the effect of .the discrepancy in the evidence respecting the age of the mule. . " Let the judgment be reversed and the cause remanded.