O'Neal v. Simonton , 109 Ala. 167 ( 1895 )

COLEMAN, J.

The appellee, Simonton, sued to recover damages for trespass' to reality. After verdict for plaintiff, the defendant moved in arrest of judgment, that ‘ ‘the pomplaint failed to set forth and contain a substantial cause of action, in that it failed to allege the plaintiff was in possession of the property at the time of the alleged trespass.” According to the form prescribed by statue tor trespass to land, it is only necessary to aver that the land belonged to the plaintiff. If the plaintiff does not rely upon ownership, but possession merely, to sustain the action, the averment of possession is neccessary and will be sufficient as a complaint. Code of 1886, p. 795. The complaint is sufficient to support a judgment, and when this is the case, a motion in arrest of judgment after verdict will not be granted, although the complaint may have been subject to demurrer properly filed.

Affirmed.