This suit was instituted to recover damages for the conversion of personal property, alleged by the plaintiff in his complaint to’be the statutory separate estate of his wife.
Under section 2525 of the Revised Code, as construed in Pickens & Wife, v. Oliver (29 Ala. 528), and other cases decided by this court, the wife alone can sue for the corpus of property thus owned by her, or for damages to the property itself as distinguished from its use.
The facts averred in the complaint clearly show that under the law of this State, which has been settled as above stated, no right of action existed in the husband for the injury complained of, — not even jointly with his wife; the right of action was in the wife alone.
This having been the aspect of the case, the judgment of the court below should have been arrested when the defendant’s motion was made for that purpose. The motion was not within the influence of section 2811 of the Code, which prohibits any judgment from being “ arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contain a substantial cause of action; ” for the complaint on which the judgment was founded contained no cause of action whatever in favor of the plaintiff. This having been the condition of the *79case, the defendant was authorized to take advantage of it at any stage of the proceedings. Cummins v. Gray, 4 Stew. & Port. 397.
If the defect was one which could be cured by an amendment, we would reverse the judgment and remand the cause; but inasmuch as no amendment could be made which would put the case in better plight for the plaintiff, our duty is to render a judgment here arresting and annulling the judgment of the circuit court, and dismissing the suit. Let it be so entered.