Blankenship v. Blackwell

• Decision Date: 30 January 1900
• Citation: 124 Ala. 355,27 So. 551
• Parties: BLANKENSHIP v. BLACKWELL ET AL.
• Court: Alabama Supreme Court

27 So. 551

124 Ala. 355

BLANKENSHIP v. BLACKWELL ET AL.

Supreme Court of Alabama

January 30, 1900

Appeal from circuit court, Madison county; John H. Sheffey, Special Judge.

Action by R. T. Blackwell and others against Clarence Blankenship. Judgment for plaintiffs, and defendant appeals. Reversed.

Grayson & Foster, for appellant.

S. S Pleasants, for appellees.

DOWDELL J.

This was an action of attachment for rent, originally sued out by R. T. Blackwell against Clarence Blankenship before a justice of the peace, who rendered judgment in favor of the plaintiff, and the defendant appealed to the circuit court. Said R. T. Blackwell filed a complaint in the circuit court in words as follows: "Plaintiff claims of the defendant $100 due by account for rent of land for the year 1895;" and later he amended said complaint by adding thereto, as additional parties plaintiff, Eliza Blackwell et al., and a further amendment was added, as follows: "And said rent is due plaintiffs as assignees of the reversion, and said reversion was conveyed to plaintiffs on October 28,1895, by deed, in words and figures as follows;" setting out a deed from William B. Lee and Kitty Lee, his wife, to plaintiffs, to certain lands therein described. The case was tried in the circuit court de novo, and without the intervention of a jury. The defendant filed the following motion: "Comes the defendant, and moves the court to abate the attachment in this case because the writ of attachment is issued against the estate of Clarence Blankenship. And the defendant avers that the crop levied on by reason of this attachment writ was not raised on the lands for the use of which rent is here sued." The defendant also moved the court to strike from the file the amendments above set forth to the original complaint. Both motions were overruled, over the objection of the defendant, who duly excepted to such rulings. The only plea filed by the defendant was, in legal effect, the general issue. A judgment was rendered in favor of the plaintiffs, and the appellant (defendant in the court below) now assigns as error the overruling of the above-mentioned motions, and the rulings of the trial court on the evidence.

The contention of counsel for appellant that the attachment should have been abated on the plea filed assumes that, the absence of which rendered the ruling of the court correct for this matter for a plea in abatement, or for a motion to vacate, quash, or set aside, was presented by the defendant in the shape of a motion to "abate." In the very authority cited by counsel for appellant, supporting his contention (viz. Ellis v. Martin, 60 Ala. 394), the court, by Brickell, C.J., says: "If [the attachment] issued against the estate generally, it would be abated on plea, and a levy on other property than the crops grown on the rented premises would be set aside." Matter in abatement requires a special plea. Defects in the writ, or apparent on the face of the affidavit or bond, may be raised by motion to quash or vacate. As a plea in abatement, it came too late. It was never filed until the case was brought into the circuit court by appeal from the judgment of the justice court. Our statutes allowing amendments, and the decisions of this court construing the same, are very liberal. Section 3331 of the Code of 1896 provides that the court, while the cause is in progress, must "permit the amendment of the complaint by striking out or adding new parties plaintiff, or by striking out or adding new parties defendant, upon such terms and conditions as the justice of the case may require." In the case of Express Co. v Boullemet, 100 Ala. 278, 13 So. 941, this court, speaking through McClellan, J., says: "The only limitation upon the right of amendment complaints in respect to striking out and adding new parties is that an entire change of parties cannot be wrought thereby. Even a change of the capacity in which the plaintiff sues is not forbidden, though formerly it was held otherwise,"-citing Lucas v. Pittman, 94 Ala. 616, 10 So. 603, where it was held that a plaintiff may amend his complaint so as to sue as an administrator instead of as an individual, or vice versa. Another limitation upon such amendments, well settled by the decisions, is that they will not be permitted when they result in a complete change of the subject-matter or cause of action involved in the suit. It is clear that there can be no merit in the insistence that R. T. Blackwell could not be permitted to amend his complaint by adding new parties plaintiff; and the objection to his further amending by changing the capacity in which the plaintiffs sued, from individuals to assignees, must also fail. For these amendments did not result in a complete change of the parties plaintiff, the original plaintiff being retained and included in the amended complaint. The character and capacity of the plaintiffs were not changed by the amendment. The addition of the words "as assignees," etc., merely showed how they derived their right to the rent. Nor can the contention of appellant that these amendments wrought a complete change in the subject-matter and cause of action be sustained. The complaint as amended still shows the same cause of action declared on in the original complaint (i. e. a claim against Clarence Blankenship "for rent of land for the year 1895"); the amendment, in so many words, claiming "said rent," as declared on in the original complaint. The case of Leatherwood v. Suggs, 96 Ala. 383, 11 So. 415, cited by appellant, which was an action for forcible entry and detainer, is not a case in point; for in that case the amendment, held by this court to have been properly disallowed by the city court, attempted to show a forcible entry and detainer of other and different lands than those involved in the original action in the justice court, where judgment was rendered in favor of the defendant. From this judgment the plaintiff appealed to the city court, where he attempted to introduce, by way of amendment, a new cause of action, with an entire change of subject-matter; this upon an appeal from the only court having original jurisdiction of the cause of action. In the case of Express Co. v. Boullemet, supra, it was held that an amendment was properly allowed by which the action was converted from the individual suit of Boullemet upon a verbal contract to the partnership suit of Boullemet & Perkins, which amendment changed the number of the parties plaintiff, as well as the parties to the contract, as originally sued on in the justice court, but the subject-matter and terms of contract remained the same.

The assignments of error numbered 3 to 15, inclusive, are directed to the rulings of the trial court upon the evidence; and, preparatory to a consideration of such rulings, we will revert briefly to the issues involved in this action. The rule is well settled that where the general issue is pleaded the onus is cast upon the plaintiff of proving every material allegation of the complaint. No evidence is properly admissible in behalf of plaintiff which does not tend to support the averments of the complaint, and the defense is limited to evidence in disproof of such averments. The material allegations of the complaint in this case, briefly put, are (1) the rental contract between plaintiff's assignor; and (2) its assignment to plaintiffs. In such an action, proof of title is not required of the landlord or his assignees; for, the lease being established (the relation of landlord and tenant having been proved), the tenant is estopped from disputing the title of his landlord, and upon a failure on the part of the plaintiff to prove such lease he could not recover. However, when, the plaintiff fails to establish such a valid lease as the law requires to operate an estoppel against the alleged tenant, such tenant will, in certain cases, be allowed to set up a paramount title in himself, or out of the lessor. See Tayl. Landl. & Ten. §§ 705-708; Bishop v. Laloutte's Heirs, 67 Ala. 201; Farris v. Houston, 74 Ala. 167.

Three deeds were offered in evidence by the plaintiff in making out his case under the...