Ex parte Nicrosi

Decision Date04 May 1894
CourtAlabama Supreme Court

Petition for mandamus ex parte D. M. Nicrosi to Hon. John R. Tyson judge of the circuit court of Montgomery county, to permit amendments to attachment papers. Petition granted.

Tray &amp Watts, for petitioner.

John G Winter and Tompkins & Troy, for respondent.


The petitioner, D. M. Nicrosi, made and filed in the circuit court of Montgomery an affidavit for an attachment against the Roswald Grocery Company to enforce a landlord's lien for rent. In said affidavit, the attachment bond, and in the writ of attachment the said company is described as a corporation,-i. e. in each of these papers that company is referred to as "The Roswald Grocery Company, a corporation." It having developed that the Roswald Grocery Company was not in fact a corporation, nor even a partnership, but the name under and by which Esther Roswald a married woman, having the right to engage in business, carried on a grocery business in the house rented from plaintiff, and which, through her agent, she signed to the notes for the rent sought to be recovered, the plaintiff moved for leave to file an amended affidavit and bond, and to amend the attachment writ, so that the words, "Esther Roswald, a married woman, doing business by the written consent of her husband, filed and recorded in the probate court of Montgomery county, under the name and style of 'The Roswald Grocery Company."' should appear in each in lieu of the words, "The Roswald Grocery Company, a corporation." The court denied this motion, and we are now asked to issue a writ of mandamus to the judge thereof, directing the allowance of the proposed amendments.

From this statement of the facts it is clear that the Roswald Grocery Company, whatever it was, whether a partnership, a corporation, or an individual, assuming the name for the purposes of trade, was the party against whom or which the suit was instituted, has all along been prosecuted, and will be continued if and after the amendments moved for are allowed. There is, in other words, no question here as to the identity of the defendant, throughout all the proceedings which have been or may, in any proposed event, be had, being originally and at all times the same in the mind of the plaintiff. The entity which entered into the rental contract, which has enjoyed the shelter of plaintiff's house, which has failed to pay the agreed price therefor, and which is sought in this action to be coerced into payment thereof, is one and the same, whether it be a contractual entity (a partnership), an artificial entity (a corporation), or a personal entity (an individual); and, whether one or another of these entities, its name is the same,-"The Roswald Grocery Company;" and its liability is the same, and enforceable by the same remedies. That entity, whatever its character, or the source or manner of its being, was proceeded against originally in this case, and brought before the court by attachment of its property.


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26 cases
  • Hughes v. Cox
    • United States
    • Supreme Court of Alabama
    • June 12, 1992
    ...her. There is, moreover, a line of cases that is in conflict with May v. Clanton, supra. That line of cases begins with Ex parte Nicrosi, 103 Ala. 104, 15 So. 507 (1894). In Nicrosi, the defendant was originally named as "The Roswald Grocery Company, a corporation"; however, Nicrosi learned......
  • N. A. Kennedy Butter Tub Company v. The First and Hamilton National Bank of Fort Wayne, 24,839
    • United States
    • United States State Supreme Court of Kansas
    • January 12, 1924
    ......39.). . . The. supreme court of Alabama considered a similar matter where. one Nicrosi filed an affidavit of attachment against The. Rosewald Grocery Company, described as a corporation. The. Rosewald Grocery Company was operated by ... as to the party--sued but merely in respect of. describing what kind of an entity the party defendant. was." (Ex parte Nicrosi 103 Ala. 104, 15 So. 507.) See, also, Goldstein v. Peter Fox's Sons. Co., 22 N.D. 636, 40 L. R. A., n. s., 566, 135 N.W. 180. [N. D.], and ......
  • Stowers Furniture Co. v. Brake
    • United States
    • Supreme Court of Alabama
    • December 17, 1908
    ...... partnership or a corporation. The court properly allowed the. amendment showing that the defendant is a corporation. Ex. parte Nicrosi, 103 Ala. 104, 15 So. 507. Nor did the court. err in allowing counts A, B, C, D, and E as amendments to the. complaint. . . ......
  • Bell v. Ayers, 32971
    • United States
    • United States Court of Appeals (Georgia)
    • July 7, 1950
    ...descriptive of the named defendant, Coca Cola Bottling Company, and not a part of the name itself. As is well said in Ex parte Nicrosi, 103 Ala. 104, 50 So. 507, an action wherein a person doing business under a company name was served with a summons designating the company name as a corpor......
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