Ferrell v. Ross

• Decision Date: 19 April 1917
• Docket Number: 6 Div. 537
• Citation: 75 So. 466,200 Ala. 90
• Parties: FERRELL v. ROSS.
• Court: Alabama Supreme Court

75 So. 466

200 Ala. 90

FERRELL v. ROSS.

6 Div. 537

Supreme Court of Alabama

April 19, 1917

Rehearing Denied May 24, 1917

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by J.H. Ferrell against I.W. Ross, receiver, etc.From an order granting a new trial, plaintiff appeals.Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Smith &amp Wilkinson, of Birmingham, for appellant.

Forney Johnston and W.R.C. Cocke, both of Birmingham, for appellee.

SAYRE J.

The summons in this case ran against "I.W. Ross receiver," etc.The caption of the complaint does not appear in the transcript--this, we presume, in consequence of rule 26, adopted June 23, 1913.175 Ala. xix, 61 South. vii.Nothing to the contrary appearing in the body of the complaint, a long line of decisions in this court constrains us to hold that the action was against defendant, I.W. Ross personally, and not as receiver.Buckley v. Wilson,56 Ala. 393;Lowery v. Daniel,98 Ala. 451, 13 So. 527;Jenkins v. Bramlett,131 Ala. 597, 32 So. 575;Bryant v. Southern Ry. Co.,137 Ala. 488, 34 So. 562;Ala. City, G. & A. Ry. Co. v. Heald,178 Ala. 636, 59 So. 461, among others that might be cited.This is the rule of the courts generally (31 Cyc. 99), and its propriety cannot be questioned.The sheriff's return showed that process had been served on "I.W. Ross, as receiver," etc.; but it was not for the sheriff to determine the capacity in which defendant had been sued or by his return to give direction to the litigation different, as the pleadings in the cause disclosed, from that intended by the parties.The caption of the judgment entry is likewise omitted, and we may presume also that it followed the summons in the respect under consideration.However, in this court it is settled that, under the statute of amendments, when an individual is sued in his personal capacity, the complaint may be amended so as to make the suit stand against him in his representative capacity or vice versa.Lucas v. Pittman,94 Ala. 616, 10 So. 603.It follows that, while the ground of liability in a certain sense is changed by an amendment of the character indicated, the parties remain the same, and the judgment on the amended complaint in such case cannot be pronounced a nullity as rendered against a person not sued.

But since the suit was against defendant personally, and the evidence tended to show only a liability as receiver, defendant should have had the general affirmative charge requested by him in writing.Under the practice which for a long time prevailed in this state, in case of a failure of necessary proof or a material variance, it was not considered necessary for the complaining party to call the court's attention to the omission or variance otherwise than by a request for the affirmative charge.Adler v. Martin,179 Ala. 97, 112, 59 So. 597.This practice has been changed by rules providing that the trial court will not be put in error for refusing the general affirmative charge, where predicated upon a variance curable by an amendment of the pleading, or upon a failure of proof "not involving a substantive right of recovery or defense," unless the point of variance or failure has been called seasonably and specifically to the attention of the court.Rules 34and35, adoptedJune23, 1913, 175 Ala. xxi.In the present case there was no evidence on the point at issue, but in the progress of the trial the parties agreed that, at the time of the injury on account of which plaintiff sued, "I.W. Ross, the defendant, was operating the car involved in the accident as receiver of the Birmingham, Ensley & Bessemer Railroad."The court refused the general charge requested by defendant and then, upon defendant's motion for a new trial, set aside plaintiff's judgment, assigning as reason for this action that error had been committed in the refusal of the charge, because "the suit in this cause was against I.W. Ross personally, and not as receiver of the Birmingham, Ensley & Bessemer Railroad Company."

There being no evidence that defendant personally had been guilty of any negligence or misconduct, the right of action was against the receivership, or the property or funds in the hands of the defendant as an officer of court, and he was not liable individually for torts committed by his subordinates.Whether the defect in plaintiff's case consisted in a failure of...