
    Wright v. Sample.
    
      Statutory Penalty for Destroying Trees.
    
    (Decided May 24, 1909.
    Rehearing denied June 30, 1909.
    50 South. 268.)
    1. Action; Injury to Trees; Nature. — Action brought under section 6037, while technically an action for debt, is not upon a debt contracted, but for a tort.
    2. Disnvtssal and Won Suit; Discontinuance ; Tort Feasors. — In aefctions ex delicto a plaintiff may discontinue as to one or more of the defendants and maintain the action against the remaining defendant without discontinuing 'the entire action.
    3. Judgment; Vacation; Who May Complain. — A defendant against whom judgment is obtained cannot complain of the fact that after the action was discontinued as to his co-defendant, the co-defendant was subsequently re-instated as a party defendant, and a judgment rendered against her, which judgment was subsequently vacated.
    4. Trespass; Injury to Fruit Trees; Penalty; Orchard; ~Sard.— The word, “orchard” means, among other things, an inclosure, containing fruit trees, and the word, “yard,” by common acceptance, means an inclosure; and where it appears that the trees were taken from a yard and orchard, showing prima facie an inclosure, the defendant is not entitled to the general charge, on the ground that there was no proof that the trees were removed from an inclosure, the action being under section 6037, Code 1907.
    Appeal from Morgan Law and Equity Court.
    Heard before Hon. Thomas W. Wert.
    Action by B. H. Sample against John L. Wright and another. Judgment for plaintiff, and defendant John L. Wright appeals.
    Affirmed.
    The suit was originally begun against John L. Wright and Laura F. Wright. It seems that after the filing of the complaint an amendment was allowed striking Laura F. Wright as a party defendant. Upon this amendment being allowed, appellant John Wright moved for a discontinuance, which was overruled. Subsequent to this amendment, and before the trial, another amendment was filed reinstating Laura F. Wright as a party defendant, and on this complaint as last amended the trial was had, resulting in a judgment against both defendants, which was subsequently amended by the court setting aside the judgment as to Laura F. Wright. John Wright takes this appeal alone.
    Wert & Lynn, and E. M. Bussell, for appellant.
    The court erred in refusing the motion to enter a discontinuance of the entire cause of action after one of the co-defendants had been stricken. — Kendall v. Lasseter, 68 Ala. 182; Torrey v. Forbes, 94 Ala. 139. The action is one of debt. — Rogers v. Brooks, 99 Ala. 35; Higdon v. Kennemer, 120 Ala. 193; Hamilton v. Griffin, 123 Ala. 600; Southern G. & F. Co. v. Calhoun County, 141 Ala. '257; Spence v. Thompson, 11 Ala. 746. Tbe effect of tbe amendment then was to put an end to tbe action. — Evans Marble Co. v. McDonald, 142 Ala. 133. Tbe appellant did not waive tbe discontinuance.— Cauldfield v. Flaomigan, 114 Ala. 48; Evans Marble Co. p. McDonald, supra. Tbe court erred in allowing plaintiff to amend bis complaint by adding Laura Wright as a party defendant after she bad been discharged.— Curtis v. Games, 46 Ala. 455. Tbe rendition of tbe judgment against tbe defendant, after tbe suit had been discontinued as to her, rendered the judgment bad as to all defendants. — 14 Cyc. 420. Tbe defendant was entitled to tbe affirmative charge. — Farrow v. W. C. & St. L., 109 Ala. 448; Davis p. Arnold, 143 Ala. 228.
    John R. Sample, for appellee.
    Tbe action is in tort and tbe plaintiff could discontinue as to one of tbe defendants without discontinuing tbe whole case.— Crcmford v. Slayton, IBB Ala: 394; Strickland v. Wedge-worth, 45 South. 653; 86 Ala. 372; 14 Cyc. 411. Tbe proof was sufficient to authorize tbe judgment.— Rogers v. Brooks, 105 Ala. 549.
   ANDERSON, J.

This action was brought under section 6037 of the Code of 1907, for tbe statutory penalty for destruction of or injury to fruit trees. Actions of this character, though technically actions of debt, are not for debts contracted, but are actions for a tort.— Crawford v. Slaton, 133 Ala. 393, 31 South. 940.

Tbe rule is well settled in this state that in actions ex delicto tbe plaintiff may discontinue as to one or more • defendants, and maintain bis action against tbe remaining defendants, without discontinuing the entire action. — Strickland v. Wedgworth, 154 Ala. 654, 45 South. 653, wherein the case of Torrey v. Forbes, 94 Ala. 135, 10 South. 320, was explained and qualified.

The trial court did not err in declining to discontinue the cause, at the instance of the appellant, John L. Wright, because the suit was dismissed as to his co-defendant. Nor can this appellant complain that his co-defendant was subsequently reinstated as party defendant and a judgment rendered against her, which was subsequently vacated.

The appellant further insists that the trial court erred in refusing the general charge requested, because there was no proof that the trees were removed from an inclosure. The proof showed that the trees were taken from the yard and orchard, which showed prima facie an inclosure. “Orchard” is defined by Webster as meaning, among other things, “an inclosure containing fruit trees,” etc. Yard: “The word ‘yard’ by common and current acceptance is an inclosure,” etc. — Cook v. Lowe, 60 N. Y. Supp. 614, 44 App. Div. 239; State v. Bugg, 66 Kan. 668, 72 Pac. 236.

The judgment of the law and equity court is affirmed.

Dowdel, C. J., and Simpson and McClellan, JJ., concur.  