Ewart v. Cunningham

• Decision Date: 11 April 1929
• Docket Number: 6 Div. 311.
• Citation: 122 So. 359,219 Ala. 399
• Parties: EWART v. CUNNINGHAM.
• Court: Alabama Supreme Court

122 So. 359

219 Ala. 399

EWART v. CUNNINGHAM.

6 Div. 311.

Supreme Court of Alabama

April 11, 1929

Rehearing Denied May 23, 1929.

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

Action for breach of warranty by E. N. Cunningham against W. E Ewart. From a judgment on writ of inquiry after judgment by default, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Harsh &amp Harsh and Woolverton & Haley, all of Birmingham, for appellant.

George Frey, of Birmingham, for appellee.

BOULDIN J.

The appeal is from a judgment upon executing a writ of inquiry before a jury upon judgment by default.

A former judgment was reversed, because the writ of inquiry was executed by the trial judge upon plaintiff's attempted withdrawal of his demand for a jury without defendant's consent. The order of this court was that such judgment "be reversed and the cause remanded for the execution of a proper writ of inquiry for the assessment of damages by a jury; the judgment by default being allowed to stand undisturbed." Ewart-Brewer Motor Co. v. Cunningham, 213 Ala. 391, 104 So. 789. Under this direction from this court the trial court properly declined to reopen the original judgment by default. It had been theretofore sustained in a mandamus proceeding before the Court of Appeals. Ex parte Cunningham, 19 Ala. App. 584, 99 So. 834.

A judgment by default while awaiting the execution of a writ of inquiry is interlocutory in character. The judgment for recovery of the ascertained damages is the final judgment. Ex parte Bozeman, 213 Ala. 223, 104 So. 402; Ex parte U.S. Shipping Board Emergency Fleet Corp., 215 Ala. 322, 110 So. 469.

If, pending the cause, and before final judgment, a complete change of parties defendant has come about by amendment, discontinuance, or abatement, the remaining defendant, not a party at the beginning of the suit, may claim a discontinuance, unless waived. Copeland v. Dixie Const. Co., 216 Ala. 257, 113 So. 82.

The original summons and complaint ran against "Ewart-Brewer Motor Company, a corporation." By amendment "corporation" was stricken, and "Ewart-Brewer Motor Company, a partnership composed of W. E. Ewart and W. P. Brewer, and W. E. Ewart and W. P. Brewer" were made defendants.

The judgment by default was entered after due service on the partnership and individual members. Before final judgment, W. P. Brewer died, and as to him the cause was discontinued or abated.

On motion of defendant, Ewart, a discontinuance was granted as to the partnership. He then moved a discontinuance on his own behalf because of complete change of parties defendant. This was overruled.

The amendment designating the company sued as a partnership, rather than a corporation, worked no change of parties. It served merely to properly designate and bring into court the legal entity subject to suit and intended to be sued in the first instance.

We are not disposed to view the individual members in the same light. They seem to be new parties brought in by amendment. But this we need not and do not decide, for the following reasons:

The death of one of the members of the partnership pending the suit did not work a discontinuance or abatement of the cause, nor require any revivor. The partnership survived as a party to the pending suit, its property remaining subject to any judgment recovered. Comer & Trapp v. Reid, 93 Ala. 391, 9 So. 621.

The discontinuance of the action as against the partnership was brought about not by law nor by the act of the opposing party, but upon motion of defendant, Ewart. He cannot claim a discontinuance for himself because of complete change of parties defendant at his own instance. He will be held to have waived such objection.

The complaint claims damages for a breach of warranty in the sale of a "Haynes Touring Car," warranted to be free from "defects in workmanship and materials." The breach alleged is that the car "was defective in that there was excessive vibration in the motor, the drive shaft of said car was not true, that the rear wheels of the car were out of line," "that the rear axle gears were not matched," to plaintiff's damage, etc.

Appellant's position that the complaint was wholly insufficient to support a judgment by default, that such judgment should have been vacated as void, is not well taken.

Counts 2 and 3 lay the warranty and its breach to "defendants" and not to one of several defendants, not identified, as in Central of Ga. Ry. v. Carlock, 196 Ala. 659, 72 So. 261. A warranty upon a "sale" of personalty implies a consideration for such warranty. A complaint is not construed most strongly against the pleader where no demurrer is interposed, and the question is whether it states a cause of action in such manner as to support a judgment.

"Materials and workmanship" are the inclusive terms descriptive of all the elements or factors which enter into the making of a good automobile. They cover the detailed defects alleged in the complaint.

The judgment by default was conclusive of the fact of a warranty and of its breach in some measure as alleged; and also conclusive of plaintiff's right to sue thereon, and to recover at least nominal damages. Demurrers and pleas thereafter filed were properly stricken on motion.

The automobile in question was purchased under conditional sale contract. The price was $1,799.80. It was stipulated that the purchaser should carry insurance for the protection of the vendor on deferred...