Copeland v. Dixie Const. Co., 6 Div. 898

CourtSupreme Court of Alabama
Writing for the CourtSOMERVILLE, J.
Citation216 Ala. 257,113 So. 82
Docket Number6 Div. 898
Decision Date26 May 1927
PartiesCOPELAND v. DIXIE CONST. CO. et al.

113 So. 82

216 Ala. 257

COPELAND
v.
DIXIE CONST. CO. et al.

6 Div. 898

Supreme Court of Alabama

May 26, 1927


Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by Mrs. O.S. Copeland against the Dixie Construction Company and others. From an order or judgment of discontinuance, plaintiff appeals. Affirmed.

M.B. Grace, of Birmingham, for appellant.

Cabaniss, Johnston, Cocke & Cabaniss and Brewer Dixon, all of Birmingham, for appellee.

SOMERVILLE, J.

With respect to the statutory right to amend a complaint "by striking out or adding new parties plaintiff, or by striking out or adding new parties defendant" (Code 1852, § 2403), it was held in Leaird v. Moore, 27 Ala. 326 (1855), that no [113 So. 83.] amendment was authorized which worked a complete change of parties. The original statute has been amplified in some respects, but as to striking out or adding parties it has remained unchanged through successive codifications down to the present time. Code 1923, § 9513.

The original construction has been uniformly adhered to by this court, and the restriction stated is as fully a part of the statute as if it were expressed therein. Rarden Merc. Co. v. Whiteside, 145 Ala. 617, 39 So. 576, citing earlier cases; Jones v. Engelhardt, 78 Ala. 505; Crawford v. Mills, 202 Ala. 62, 79 So. 456; Steele v. Booker, 205 Ala. 210, 87 So. 203; Thomas v. Saulsbury, 212 Ala. 245, 102 So. 115; Roth v. Scruggs, 214 Ala. 32, 106 So. 182.

And it is settled that successive amendments whereby a new party is first added, and then the original party is stricken out, discontinues the cause as effectually as if both results were accomplished at once by a single amendment. Rarden Merc. Co. v. Whiteside, supra; Roth v. Scruggs, supra; Pickens v. Oliver, 32 Ala. 626.

The rule of these decisions, unless changed by statute, undoubtedly governs the instant case. This is conceded by counsel for appellant. The insistence, however, is that this rule was in fact changed by the Act of September 8, 1915, amending section 2502 of the Code of 1907 (now section 5718 of the Code of 1923), and that the decisions since that time have taken no account of this amended statute.

Prior to the amendment of 1915, this statute simply authorized the plaintiff, in a suit against two or more persons on any joint or joint and several contract or cause of action, to discontinue as to defendants not served, and to proceed to judgment against the others. The...

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16 practice notes
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • 25 Octubre 1928
    ...parties plaintiff or defendant, when not making a complete change of parties, etc., is Code, § 9513. Copeland v. Dixie Construction Co., 216 Ala. 257, 113 So. 82; B.R.R. Co. v. Ellenburg, 215 Ala. 395, 111 So. 219. And in the same connection we shall later examine the nature of the liabilit......
  • Humphrey v. Poss, 7 Div. 756.
    • United States
    • Supreme Court of Alabama
    • 26 Noviembre 1943
    ...defendant. Van Landingham v. Alabama Great So. Ry. Co., 243 Ala. 31, 8 So.2d 266; Copeland v. Dixie Construction [245 Ala. 13] Co., 216 Ala. 257, 113 So. 82; Rarden Mercantile Co. v. Whiteside, 145 Ala. 617, 39 So. 576. But in harmony with the current of authority elsewhere (28 R.C.L. p. 82......
  • Braswell v. Brooks, 5 Div. 579
    • United States
    • Supreme Court of Alabama
    • 25 Abril 1957
    ...defendant. Van Landingham v. Alabama Great So. Ry. Co., 243 Ala. 31, 8 So.2d 266; Copeland v. Dixie Construction Co., 216 Ala., 257, 113 So. 82; Rarden Mercantile Co. v. Whiteside, 145 Ala. 617, 39 So. 576. But in harmony with the current of authority elsewhere (28 R.C.L. p. 824; 71 C.J. p.......
  • Van Landingham v. Alabama Great Southern R. Co., 6 Div. 950.
    • United States
    • Supreme Court of Alabama
    • 21 Mayo 1942
    ...of offering the motion for a discontinuance. Ewart v. Cunningham, 219 Ala. 399, 122 So. 359; Copeland v. Dixie Construction Company, 216 Ala. 257, 113 So. 82. We infer from the record the agent Griffis, who was served, also acted as an agent for the Southern Railway Company. The argument as......
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16 cases
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • 25 Octubre 1928
    ...parties plaintiff or defendant, when not making a complete change of parties, etc., is Code, § 9513. Copeland v. Dixie Construction Co., 216 Ala. 257, 113 So. 82; B.R.R. Co. v. Ellenburg, 215 Ala. 395, 111 So. 219. And in the same connection we shall later examine the nature of the liabilit......
  • Humphrey v. Poss, 7 Div. 756.
    • United States
    • Supreme Court of Alabama
    • 26 Noviembre 1943
    ...defendant. Van Landingham v. Alabama Great So. Ry. Co., 243 Ala. 31, 8 So.2d 266; Copeland v. Dixie Construction [245 Ala. 13] Co., 216 Ala. 257, 113 So. 82; Rarden Mercantile Co. v. Whiteside, 145 Ala. 617, 39 So. 576. But in harmony with the current of authority elsewhere (28 R.C.L. p. 82......
  • Braswell v. Brooks, 5 Div. 579
    • United States
    • Supreme Court of Alabama
    • 25 Abril 1957
    ...defendant. Van Landingham v. Alabama Great So. Ry. Co., 243 Ala. 31, 8 So.2d 266; Copeland v. Dixie Construction Co., 216 Ala., 257, 113 So. 82; Rarden Mercantile Co. v. Whiteside, 145 Ala. 617, 39 So. 576. But in harmony with the current of authority elsewhere (28 R.C.L. p. 824; 71 C.J. p.......
  • Van Landingham v. Alabama Great Southern R. Co., 6 Div. 950.
    • United States
    • Supreme Court of Alabama
    • 21 Mayo 1942
    ...of offering the motion for a discontinuance. Ewart v. Cunningham, 219 Ala. 399, 122 So. 359; Copeland v. Dixie Construction Company, 216 Ala. 257, 113 So. 82. We infer from the record the agent Griffis, who was served, also acted as an agent for the Southern Railway Company. The argument as......
  • Request a trial to view additional results

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