Guilford & Co. v. Kendall , 42 Ala. 651 ( 1868 )

BYRD, J.

I. The distinctions existing at common law between the actions of trespass vi et armis and on the case, have not been abolished by the Code, and a count in each can not be joined in the same action. — Bell’s Adm’r v. Troy, 35 Ala. 202.

II. Whether the complaint in this cause is in trespass or in case, it is unnecessary to decide, if either of the assignments of demurrer is well taken; for where several grounds of demurrer are specified, and the court sustains them all, although some are not well assigned, and the plaintiff declines to amend the complaint, and the court thereupon gives judgment final against the plaintiff, and he appeals, this court will not reverse the judgment, if any one of the grounds is well taken. The party, if he desires to avail himself of the error of the court in sustaining the grounds not properly assigned, should offer to amend so as to make the complaint good, and having done this, or if the court refuses to allow him to amend without doing so as to the grounds not well taken, then he could place himself in a position to have the action of the court reviewed on the assignments which were erroneously sustained.

III. Whether the action is trespass or case, it was necessary to have averred that the “ digging and undermining” was wrongful. There is no form prescribed in the Code for a complaint in an action on the case. There is one given for an action of trespass, and that uses the word wrongfully. The complaint in this case does not even conform to the only analogous form furnished by the Code. It is not indispensable to a good complaint, that the exact language of the Code should be used. But, in this complaint, no word or phrase equivalent to the word “ wrongfully” is employed. A party having a right to dig under or undermine a house, might do it so unskillfully as to injure the house or the contents of it, and would be liable for the injury done. On the other hand, a party may have such a right, and exercise it and cause an injury for which he would not be responsible. The act causing the injury must be averred to be wrongful, or some equivalent averment used, in order to sustain the sufficiency of a complaint in trespass or case on demurrer.

The third assignment of demurrer must therefore be held to be well taken to the complaint, and the judgment of the court must be affirmed.