Miller-Brent Lumber Co. v. Lunday

SIMPSON, J. The only assignment of error insisted on in this case is that the court erred in overruling the demurrer to count 3 of the complaint, and the only insistence is that said count was subject to the demurrer, in that it failed to allege the time when said trespass was committed, citing, in support of said contention. — Snedecor v. Pope, 143 Ala. 275, 286, 39 South. 318. That was a case of trespass to realty, and the form of complaint on page 1199 of volume 2 of the Code of 1907 (form 26) so requires. But, in the case of trespass for taking personal property, no such requirement is made; and the said count 3 is in exact conformity to form 23, on the same page of the Code. Said count 3 is for “wrongfully taking the following goods and chattels, the property of the plaintiff, viz., 3,000 pine rails and 3,000 pine boards.” The count shows on its face that it is not for trespass to realty, but for taking personal property. — Thornton v. Cochran, 51 Ala. 415. There was no error in the ruling of the court, and the judgment of the court is affirmed. Affirmed. All the Justices concur.