Crawford v. Mills, 4 Div. 803

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation79 So. 456,202 Ala. 62
Decision Date29 June 1918
Docket Number4 Div. 803
PartiesCRAWFORD v. MILLS.

79 So. 456

202 Ala. 62

CRAWFORD
v.
MILLS.

4 Div. 803

Supreme Court of Alabama

June 29, 1918


Appeal from Circuit Court, Henry County; H.A. Pearce, Judge.

Action by W.H. Mills against J.W. Crawford. From adverse judgment, defendant appeals. Transferred from the Court of Appeals under section 6, Act of April 18, 1911, p. 449. Affirmed.

W.L. Lee, of Columbia, and B.G. Farmer and T.M. Espy, both of Dothan, for appellant.

W.O. Long, of Abbeville, W.R. Chapman, of Dothan, and H.L. Martin, of Ozark, for appellee. [79 So. 457]

THOMAS, J.

The original complaint, filed July 26, 1915, was against W.G. Creel, J.W. Crawford, R.K. Stokes, and J.B. Long, as principal and sureties, on a bond given by the principal to conduct a public warehouse for the storage of cotton, etc., for compensation, in accordance with section 6123 et seq. of the Code. The breach of the bond averred was the failure and refusal, after due demand, to deliver seven bales of cotton to plaintiff, transferee of warehouse receipts issued to Mary C. Davis for said cotton, stored by her with the Farmers' Warehouse during the time it was operated by Creel. On August 16, 1916, after the several defendants had been served with copy of the summons and complaint, amendment was made by striking as parties defendant Creel, Stokes, and Long, and by adding counts 2 to 6, inclusive. Whereupon defendant Crawford moved to strike the complaint as amended, which motion being denied, he moved the court to enter a discontinuance of the cause. The first twelve assignments of error challenge the court's ruling in permitting the amendment, denying the motion to strike, and refusing to enter a discontinuance.

1. Appellant's insistence is that, as the several parties were sued in the same action, and summons and complaint was served upon all of them, and no personal defenses were interposed when plaintiff amended by striking from the complaint all defendants save J.W. Crawford, the remaining defendant took timely advantage of such action by moving that a discontinuance of the cause be entered. This would have been the effect of such an amendment, under a long line of decisions in this state following the rule of the common law. 123 Cyc. 804; 14 Cyc. 411; Will's Gould on Pl. pp. 387, 455; Smith v. Cobb, 1 Stew. 62; Adkins v. Allen, 1 Stew. 130; Slade v. Street, 77 Ala. 578; Torrey v. Forbes, 94 Ala. 135, 10 So. 320; Hayes v. Dunn, 136 Ala. 528, 34 So. 944; Evans Marble Co. v. McDonald & Co., 142 Ala. 130, 37 So. 830; Ashby Brick Co. v. Walker Co., 151 Ala. 272, 44 So. 96; Long v. Gwin, 188 Ala. 196, 66 So. 88; Beecher v. Henderson, 4 Ala.App. 543, 58 So. 805; King v. Gibbs, 12 Ala.App. 504, 67 So. 757; Plunkett v. Dendy, 197 Ala. 262, 72 So. 525.

This common-law rule finding recognition in the statutes (1852, § 2149; 1867, § 2545; 1876, § 2911; 1886, § 2607; 1896, § 42; 1907, § 2502) was abolished by the remedial procedure of September 18, 1915, which was:

"That section 2502 of the Code (1907) be amended so as to read: 2502. When any suit is instituted against one or more persons upon any separate joint, or joint and several contracts, or upon any separate joint, or joint and several cause of action, the plaintiff 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 stricken out but the plaintiff may recover such judgment as he may be entitled to against any one or more of the defendants. And where in a suit upon a joint contract or cause of action, the proof shows it to be a separate or several contracts or cause of action, the plaintiff may amend by striking out the parties not liable, and such amendment shall not work a discontinuance, or constitute a variance." Gen.Acts 1915, p. 605

See ( Plunkett v. Dendy, 197 Ala. 262, 72 'South. 525; Beltman v. B'ham P. & G. Co., 185 Ala. 313, 64 So. 600; Brown v. Loeb, 177 Ala. 106, 58 So. 330.

The statute applies to pending causes, as to amendments made after its adoption. Remedial statutes have been given like application by this court. Walden v. Leach, 78 So. 381; Coker v. Fountain, 75 So. 471; T.R. N. Co. v. Grantland, 75 So. 283; Poull & Co. v. Foy-Hays Co., 159 Ala. 453, 48 So. 785; Jefferson County Sav. Bank v. Barbour, 191 Ala. 238, 68 So. 43. There was no discontinuance by striking several of the parties defendant to the original complaint after service was perfected on all of them. No entire change of parties was made by the amendment made under section 5367 of the Code. Plunkett v. Dendy, 197 Ala. 262, 72 So. 525; Smith v. Yearwood, 197 Ala. 680, 73 So. 384; Rarden Merc. Co. v. Whiteside, 145 Ala. 617, 39 So. 576; Vinegar Bend Co. v. Chicago Co., 131 Ala. 411, 30 So. 776; Evans Co. v. McDonald, 142 Ala. 130, 37 So. 830; Head v. J.M. Robinson, Norton & Co., 191 Ala. 352, 67 So. 976.

2. Did the court...

To continue reading

Request your trial
16 practice notes
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...served or not," without making "a discontinuance as to any defendant not stricken out," etc. Section 5718, Code; Crawford v. Mills, 202 Ala. 62, 79 So. 456; Patterson v. Patrick, 202 Ala. 363, 80 So. 445; Carswell v. B.F. Kay & Son, 214 Ala. 619, 108 So. 518; Wright v. McCord, 205 Ala. 122,......
  • Walker v. St. Louis-San Francisco Ry. Co., 6 Div. 412
    • United States
    • Supreme Court of Alabama
    • April 8, 1926
    ...390] by the foregoing decisions, and was expressly overruled in Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653. See Crawford v. Mills, 202 Ala. 62, 79 So. 456. Plaintiff's intestate was killed at Dora by a train of the railway company operated by defendant Houppert as locomotive enginee......
  • Wright v. McCord, 8 Div. 188
    • United States
    • Supreme Court of Alabama
    • December 16, 1920
    ...demurrer thereto. The right of amendment by striking parties defendant is provided by statute. Gen.Acts, 1915, p. 605; Crawford v. Mills, 202 Ala. 62, 79 So. 456; Plunkett v. Dendy, 197 Ala. 262, 72 So. 525. That defendant Walker was stricken as a party defendant was pursuant to a compromis......
  • Haynes v. Phillips, 6 Div. 889.
    • United States
    • Supreme Court of Alabama
    • January 17, 1924
    ...v. North Pratt Coal Co., 205 Ala. 56, 87 So. 804; L. & N. R. Co. v. Holmes, 205 Ala. 47, 87 So. 574. See, also, Crawford v. Mills, 202 Ala. 62, 79 So. 456. The general rule is well established that an amendment to a complaint which does not set up a new cause of action, or make a new demand......
  • Request a trial to view additional results
16 cases
  • Union Indemnity Co. v. Webster, 6 Div. 950
    • United States
    • Supreme Court of Alabama
    • October 25, 1928
    ...served or not," without making "a discontinuance as to any defendant not stricken out," etc. Section 5718, Code; Crawford v. Mills, 202 Ala. 62, 79 So. 456; Patterson v. Patrick, 202 Ala. 363, 80 So. 445; Carswell v. B.F. Kay & Son, 214 Ala. 619, 108 So. 518; Wright v. McCord, 205 Ala. 122,......
  • Walker v. St. Louis-San Francisco Ry. Co., 6 Div. 412
    • United States
    • Supreme Court of Alabama
    • April 8, 1926
    ...390] by the foregoing decisions, and was expressly overruled in Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653. See Crawford v. Mills, 202 Ala. 62, 79 So. 456. Plaintiff's intestate was killed at Dora by a train of the railway company operated by defendant Houppert as locomotive enginee......
  • Wright v. McCord, 8 Div. 188
    • United States
    • Supreme Court of Alabama
    • December 16, 1920
    ...demurrer thereto. The right of amendment by striking parties defendant is provided by statute. Gen.Acts, 1915, p. 605; Crawford v. Mills, 202 Ala. 62, 79 So. 456; Plunkett v. Dendy, 197 Ala. 262, 72 So. 525. That defendant Walker was stricken as a party defendant was pursuant to a compromis......
  • Haynes v. Phillips, 6 Div. 889.
    • United States
    • Supreme Court of Alabama
    • January 17, 1924
    ...v. North Pratt Coal Co., 205 Ala. 56, 87 So. 804; L. & N. R. Co. v. Holmes, 205 Ala. 47, 87 So. 574. See, also, Crawford v. Mills, 202 Ala. 62, 79 So. 456. The general rule is well established that an amendment to a complaint which does not set up a new cause of action, or make a new demand......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT