Brown v. Loeb

• Decision Date: 04 April 1912
• Citation: 58 So. 330,177 Ala. 106
• Parties: BROWN v. LOEB.
• Court: Alabama Supreme Court

58 So. 330

177 Ala. 106

BROWN v. LOEB.

Supreme Court of Alabama

April 4, 1912

Appeal from City Court of Montgomery; William H. Thomas, Judge.

Ejectment by Jacques Loeb against Arthur Brown. From a judgment for plaintiff, defendant appeals. Affirmed.

Ball &amp Samford and Hill, Hill & Whiting, all of Montgomery, for appellant.

Steiner Crum & Weil, of Montgomery, for appellee.

SOMERVILLE J.

In an action of statutory ejectment, the original complaint described the property sued for as the most easterly 23 1/2 acres in the S.W. 1/4 of the N.E. 1/4 of a designated section, upon which defendant entered and unlawfully withheld. Before entering upon the trial, the court allowed plaintiff to amend his complaint by substituting S.E. 1/4 for N.E. 1/4 in the description of the land.

Under the old statute of amendments it had been held by this court in an ejectment case, that "a correction in the description of the property sued for should not be regarded as the substitution of a new cause of action, unless it appears to be such a wide departure from the former description as to introduce a claim to other and different premises not intended to be previously claimed." Pickett v. Pope, 74 Ala. 122, 133. The description there was of a town lot "commencing 600 feet north" of a certain corner, "and running north 400 feet." By amendment south was substituted for north in both places; the effect being, as in the present case, to describe a different piece of land. This court approved its allowance, with the observation that "the whole correction made seems to have been the substitution of south for north, which may have been a mere clerical error," citing Russell v. Irwin, 38 Ala. 44, which seems to support the ruling.

Doubtless, however, there was some uncertainty as to the limitations to be placed upon this class of amendments, and perhaps some embarrassment in the general application of the commendably liberal principle announced in the Pickett Case. At any rate, the recent revision of the old statute as it now appears in section 5367 of the Code has been framed apparently with special reference to this and similar amendments. The added language is: "* * * And it shall not be held that such new counts or statements of the cause of action relate to new or other causes of action, so long as they refer to the same transaction, property and title and parties as the original, and where this is not apparent on the averments of the pleading, it shall be a question of fact for the jury." Opinions cannot rationally differ as to the plain purpose and the manifest meaning of the language here employed.

Where the record itself does not clearly inform the trial court as to the identity or nonidentity of the new matter with the old, the amendment must be allowed, and the issue of identity vel non must be submitted as an issue of fact to the jury; and, unless the plaintiff so amending shall reasonably satisfy the jury of such identity, the whole issue should be decided against him in so far as it depends upon the amendment. In respect to the matters specified, inadvertent inaccuracies and mistakes are notoriously frequent, and the legislative purpose was to at once and completely relieve the trial of causes of the needless expense and delay so often incident to their correction, and to furnish to trial courts a rule of action that is both simple and certain. The result thus achieved is a wholesome one, and in full accord with the modern spirit of reform in judicial procedure, which looks more and more to the substance, and regards less and less the form.

Applying this new provision of the statute to the facts shown in the present case, there can be no doubt whatever that the original complaint exhibited a merely clerical error in the description of the land sued for, and that the intention of the plaintiffs was to sue for the land described in the mortgages under which they were claiming; the controversy not being referable to any other land. We hold, therefore, that the...