Floyd v. Wilson

ANDERSON, J. Upon the former appeal in this case (163 Ala. 283, 50 South. 122), we held, and properly so, that the original complaint was trespass quare [141] clausum fregit. The amended complaint, count 4, is for the statutory penalty for cutting trees, and prior to the Code of 1907 these counts could not be joined.—Higdon v. Kennemer, 120 Ala. 193, 24 South. 439. While the right to amend, even prior to the present Code, was sanctioned with a spirit of liberality, it was never held that amendments amounting to a misjonder, under existing laws, were permissible whether relating to the same subject-matter or not. The present Code authorizes the joinder of the statutory penalty for cutting trees with actions for trespass. — Code 1907, § 6035. And section 10 authorizes the amendment in pending causes. — Western R. R. Co. v. Hart, 160 Ala. 599, 49 South. 371. But said section expressly provides that the Code shall not affect any existing defense. — Carr v. Miller, 161 Ala. 658, 49 South. 802; Poull v. Foy-Hays Co. 159 Ala. 453, 48 South. 785. It is true that the statute of limitations may not be, strictly speaking, a vested right, and the Legislature Would no doubt have the right to extend, curtail, or strike down same. —Scales v. Otts, 127 Ala. 582, 29 South. 63. This right, however, can only be exercised so as to apply to cases where the bar was not complete before the enactment of the statute, for, if the action was already barred when the statute was enacted, its effect would be to revive a cause of action already barred and would violate section 95 of the Constitution of 1901, which, among other things, says: “And the Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this state. After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to the suit.” The original suit was brought over a year before the Code of 1907 went into effect, [142] and count 4 was then barred, and the Code, which subsequently authorized the joinder, did not have the effect of making the amendment relate back so as to revive the action for the statutory penalty, or wipe out a complete bar to same, upon the theory of lis pendens. Before the Code of 1907, the counts could not be joined, and the doctrine of lis pendens could not then apply, and whether it could now or not, as to causes of action arising subsequent to- the Code, it could not apply to the present case, as the defendant had a complete defense to the fourth count Avhen the Code became effective, and AAhich is expressly preserved by section 95 of the Constitution. The trial court did not err in sustaining the demurrer to plaintiff’s replication to the plea of the statute of limitations to the fourth count, and the judgment of the circuit court is affirmed. Affirmed. Dowdell, C. J., and Sayre and Somerville, JJ., concur.