Board of Water and Sewer Com'rs of City of Mobile v. McDonald
Decision Date | 06 August 1975 |
Citation | 322 So.2d 717,56 Ala.App. 426 |
Parties | BOARD OF WATER AND SEWER COMMISSIONERS OF The CITY OF MOBILE v. John E. McDONALD, Jr. and Barbara B. McDonald. Civ. 474. |
Court | Alabama Court of Civil Appeals |
Gaillard, Smith & Little, Mobile, for appellant.
John W. Parker and Tonsmeire, McFadden & Riley, Mobile, for appellees.
John E. McDonald, Jr. filed suit in the Circuit Court of Mobile County against defendant, Board of Water and Sewer Commissioners of the City of Mobile on October 31, 1973. The gravamen of the action was that on December 18, 1963, a decree of condemnation was entered in the probate court of Mobile County by which there was condemned a ten-foot sanitary sewer easement across a lot of plaintiff. Damages of $100.00 were directed to be paid plaintiff; the $100.00 was never paid plaintiff; the easement was thereafter exercised by defendant but not in the location described in the decree of condemnation; plaintiff claimed damages for continuing trespass, wrongful taking of property and damages for the taking. After trial without a jury the court awarded damages in the sum of $3,200.00. Defendant Board appeals.
Defendant charges error in the ruling of the trial court granting a motion of plaintiff, filed on August 19, 1974, to amend by adding Barbara B. McDonald as a party plaintiff.
The ruling of the lower court arose under the following circumstances: On August 15, 1974, the Board moved for dismissal or summary judgment against plaintiff John McDonald on the ground that he was not the owner of the property. The allegations of the motion and exhibits attached showed that McDonald had conveyed title to his wife, Barbara, on July 17, 1961, and record title remained in her as of the date of the motion. Without controverting the motion of defendant for summary judgment, plaintiff first filed a motion on August 16, 1974, to join Barbara McDonald as a party plaintiff under Rule 17(a) of the Alabama Rules of Civil Procedure as the real party in interest. Plaintiff next filed a motion to join or substitute Barbara McDonald under Rule 21, ARCP.
Defendant's motion for summary judgment and the motions of plaintiff to join or substitute Barbara McDonald as party plaintiff all were presented and arguments heard thereon by the court on August 19, 1974. Defendant was granted summary judgment against John McDonald. Plaintiff's motion to amend and join or substitute Barbara McDonald as plaintiff was granted.
After trial and judgment defendant moved for judgment notwithstanding the verdict or in the alternative the granting of a new trial. The motion was denied.
The ground of the motion for judgment N.O.V. is the same as the argument against the requested amendment--that is, the amendment was improper under Rule 15(a) and was such as did not relate back to the date of the original complaint under Rule 15(c).
The position of defendant below and on appeal is founded upon undisputed facts. These are: the Board brought action to condemn a sewer easement across several properties. It was alleged in the petition that among such properties was a lot owned by John McDonald. He was served with the petition for condemnation and was represented by counsel at the hearing thereon. Damages of $100.00 were awarded him for the taking. The Board paid to the probate court the total of all damages awarded for the total project. Some of the owners appealed the probate court award. The check was returned to the Board. McDonald never received the sum awarded. The right obtained by the Board was promptly exercised in December, 1963, by installing a sewer across the McDonald property. McDonald observed the location of the line and through counsel notified the Board that he believed it to be installed in a location other than that condemned. No further action was taken until he filed suit in October, 1973. In August, 1974, the Board found the title to the property which it had sought to condemn to be in Barbara, the wife of John McDonald. Such title has been transferred by deed in 1961, prior to the action to condemn. This information prompted the motion for summary judgment against John McDonald. It also made it necessary for McDonald to seek to join or substitute his wife as plaintiff.
There is no question but that Rule 15 of the new Alabama Rules of Civil Procedure is a marked departure from our previous rules of practice and procedure. The Committee Comment makes such fact very evident when it says, (Emphasis added.)
The purpose of the rules effect justice upon the merits of the claim and to renounce technicality of procedure is markedly evident from the last two sentences of Rule 15(b). These sentences are as follows:
These sentences are not found in the federal Rule 15 but are certainly expressive of the interpretations of the federal rule by the federal courts. Robbins v. Jordan, 86 U.S.App.D.C. 304, 181 F.2d 793. 6 Wright & Miller, Federal Practice and Procedure, Civil, § 1495. 1 Lyons, Alabama Practice, Sec. 15.5, page 309.
With the principle clearly in mind that amendments are to be allowed as justice requires, regardless of the common law prohibition as to changes in causes of action or complete change of parties, we look further in this case to Rule 15(c) which, as pertinent, is as follows:
Though Rule 15(c) as it reads applies to amendment affecting defendants, it has been held that it is to be applied by analogy to amendments changing plaintiffs. 6 Wright & Miller, Federal Practice and Procedure, § 1501. Yordan v. Flaste, D.C.Del.1974, 374 F.Supp. 516.
Defendant in this case argues that the amendment permitted by the court when related back to the original complaint denies to defendant the defense of the ten-year statute of...
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