Copeland v. Dixie Const. Co.

• Decision Date: 26 May 1927
• Docket Number: 6 Div. 898
• Citation: 216 Ala. 257,113 So. 82
• Parties: COPELAND v. DIXIE CONST. CO. et al.
• Court: Alabama Supreme Court

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 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 amended statute provides that the plaintiff, in such an action against one or more persons, "may at any time amend the summons and complaint by striking out, or adding parties plaintiff or defendant, whether served or not, and such amendment shall not work a discontinuance as to any defendant not striken out; but the plaintiff may recover such judgment as he may be entitled to against any one or more of the defendants."

We do not think the Legislature intended, by these changes in the statute relating to discontinuances, to affect the statute regulating amendments, nor, as insisted by counsel for appellant, to destroy the rule declared in Rarden Merc Co. v. Whiteside, 145 Ala. 617, 39 So. 576. Had they so intended, they would certainly have amended section 5367 of the Code (now section 9513, Code 1923), which the Whiteside and earlier cases had construed. In the enactment of statutes a Legislature will not be...