DocketNumber: 6 Div. 444.
Citation Numbers: 153 So. 465, 26 Ala. App. 70
Judges: BRICKEN, Presiding Judge.
Filed Date: 11/14/1933
Status: Precedential
Modified Date: 1/11/2023
The appellant instituted this action to recover damages for the destruction of a chattel on which he held a mortgage and which was in the possession of the mortgagor at the time of its destruction.
Count 1 claimed damages for a conversion; counts 2 and 3 claimed damages for the negligent destruction of the chattel. The court below sustained the demurrer to count 2 and overruled the demurrer to defendant's plea *Page 72 No. 3, alleging payment of damages to the mortgagor. These two rulings bring before us the main questions of law involved in this case and dispense with the necessity of considering other questions.
Count 2 and count 3 are identical with the exception that count 2 omits to state the place where the accident occurred. Any error, therefore, in sustaining the demurrer to count 2 was without injury, as the appellant could get all the benefit under count 3 he could have obtained under count 2. For that reason we hold that the ruling as to count 2 was error without injury, if error intervened.
Under section 5670 of the Code 1923, both the mortgagor and the mortgagee could maintain an action for the conversion of or injury to the mortgaged property. Southern Ry. Co. v. Chambless,
One question presented by the ruling on plea 3 is whether a release by the mortgagor in possession at the time the cause of action accrued is a bar to an action by the mortgagee for damages arising from the same cause of action. We are of the opinion that the question must be answered in the affirmative. Harris v. Seaboard Air Line Ry. Co.,
The judgment of the court below is reversed and the cause remanded.
Reversed and remanded.
PER CURIAM.
Affirmed on authority of Lowery v. Louisville N. R. Co.,