Lister v. Vowell

• Decision Date: 02 February 1899
• Citation: 25 So. 564,122 Ala. 264
• Parties: LISTER v. VOWELL ET AL. [1]
• Court: Alabama Supreme Court

25 So. 564

122 Ala. 264

LISTER v. VOWELL ET AL. ^[1]

Supreme Court of Alabama

February 2, 1899

Appeal from city court of Gadsden; John H. Disque, Judge.

Action by A. P. Vowell and others against T. W. Lister. From a judgment in favor of plaintiffs, defendant appealed. Reversed.

This suit was originally brought in the name of A. P. Vowell, R D. Vowell, and J. A. Vowell against T. W. Lister, and claimed of the defendant damages for wrongfully taking the following property, viz.: "One 15 horse power boiler and Peerless engine, one sawmill and fixtures, and 26,000 feet of lumber." The complaint was amended by adding after the name of T. W. Lister, the defendant, the following words "As sheriff of Etowah county." The defendant made a motion to strike this amendment, on the ground that it was a complete departure from the original complaint. This motion was overruled, and the defendant duly excepted. The defendant then moved to strike the amendment upon the ground that it added nothing to the complaint. This motion was overruled and the defendant thereupon duly excepted. Thereupon the plaintiffs, by leave of the court, amended the complaint by adding after the names of the plaintiffs, as they appear in the title of the case, the following words: "As partners doing business under the name and style of the Vowell Lumber Company." The defendant moved the court to strike said complaint, as amended, from the file, upon the ground that it was a complete departure from the original complaint. This motion was overruled, and the defendant duly excepted. It was shown that the property alleged to have been wrongfully taken from the possession of the plaintiffs was levied upon by the defendant, as sheriff, under an execution issued on a judgment recovered against D. N. Vowell, who was the husband of the plaintiff A. P. Vowell, and that the property so levied upon was at the time in the possession of the plaintiffs, who were conducting a lumber business under the firm name of the Vowell Lumber Company. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. The cause was tried by the court without the intervention of a jury, and upon the hearing of all the evidence the court rendered judgment in favor of the plaintiffs, assessing the damages at the sum of $366.73. To the rendition of this judgment the defendant duly excepted. The defendant appeals and assigns as error the several rulings of the trial court to which exceptions were reserved.

George D. Motley and E. H. Hanna, for appellant.

N. G. Canning, for appellees.

SHARPE J.

Upon the theory that the plaintiffs were partners, and were suing for the taking of their partnership property, the action was properly brought in their individual names; and the amendment describing the plaintiffs as partners, if not necessary to be made, did not make any change of parties. Since a partnership is not a person, either natural or artificial, it cannot sue as a party plaintiff, in the firm name. Moore v. Burns, 60 Ala. 269; Lanford v. Patton, 44 Ala. 584. The addition of the firm name, "Vowell Lumber Company," whereby it appears in the complaint as a party plaintiff, was unavailing for such purpose. But the objection to these amendments, coming by motion to strike out the whole complaint, as amended, on the ground that it was a departure, was not well taken, and was properly overruled. The addition of the words, "as sheriff of Etowah County, Alabama," to the defendant's name, was merely descriptive of the defendant, and the refusal of ...