Copeland v. Flowers , 21 Ala. 472 ( 1852 )

LIGON, J.

— The statement filed in this case contains two counts. The first is indebitatus assumpsit for work and labor done; and the second appears to be a count in trover for the value of a wagon.

To this statement there was a general demurrer, Avhich was sustained by the court below. The practice of demurring to statements in cases of appeal from justices of the peace, in which the case is required by the statute to be tried de novo on its merits in the Appellate Court, on an issue made up under its direction, .'-as sanctioned by this court in the case of Williams v. Hinton, 1 A. R. 297, and has never been repudiated.

In the case under consideration, there is a clear misjoinder of causes of action; for it is too well settled to require a citation of authorities to prove it, that assumpsit and trover cannot be joined in the same declaration, and that such mis-joinder is bad on general demurrer.

There is no error in the record, and the judgment of the Circuit Court must be affirmed.