Head v. J.M. Robinson, Norton & Co.

• Decision Date: 11 February 1915
• Docket Number: 540
• Citation: 67 So. 976,191 Ala. 352
• Court: Alabama Supreme Court
• Parties: HEAD v. J.M. ROBINSON, NORTON & CO.

67 So. 976

191 Ala. 352

HEAD v. J.M. ROBINSON, NORTON & CO.

No. 540

Supreme Court of Alabama

February 11, 1915

Appeal from City Court of Andalusia; Ed T. Albritton, Judge.

Action by J.M. Robinson, Norton & Co. against J.M. Head. From a judgment overruling a demurrer to the complaint, defendant appeals. Affirmed.

Jones &amp Powell, of Andalusia, for appellant.

A Whaley, of Andalusia, for appellee.

THOMAS J.

The appellee, J.M. Robinson, Norton & Co., a corporation, filed its suit on the common counts against appellant, J.M. Head. The complaint describes the plaintiff therein as "J.M Robinson, Norton & Co., a corporation." Appellant demurred to the complaint because it failed to aver whether the plaintiff was "a foreign corporation or a domestic corporation." The court overruled defendant's demurrers, from which judgment appellant appealed under the provisions of an act creating the Andalusia city court of law and equity, permitting appeals from judgments on pleadings in civil causes.

In Western Railway of Alabama v. Sistrunk, 85 Ala. 352 5 So. 79, the original summons and complaint described the defendant as "the Western Railway of Alabama." The attorney for the defendant as amicus curiae moved to strike the case from the docket on the ground that the defendant did not appear to be a legal person capable of being sued; but the court overruled the motion and allowed the plaintiff to amend the summons and complaint by adding the words "a body corporate" after the name of the defendant, which was sanctioned by this court.

In Southern Life Insurance Co. v. Roberts, 60 Ala. 431, the complaint was, "The plaintiff, the Southern Life Insurance Company, of Memphis, Tenn., claims of the defendant," etc. A demurrer was filed because the names of the individual partners composing the company, if it be a partnership, were not set forth, and because, if it be a corporation, it was not alleged and shown how it became so. The demurrer was sustained, and the court allowed the complaint to be amended by the addition of the words "a body corporate, made public by virtue of the laws and statutes of the state of Tennessee," etc. The court then allowed the cause to he stricken from the docket on the idea that there was no party plaintiff in the cause when the suit was brought. This court said:

"We cannot concur in this view. The corporation does not, even quoad hoc, become nonexistent, by a failure to describe the manner and place of its origin. It continues to be a body politic. In this instance, it comes into court by attorney, and with its right name--that conferred upon it, and by which it is known--and we see no reason for denying to it leave to set itself right, as any other suitor may do, upon the record."

A suit was commenced in Rosenberg v. Claflin Co., 95 Ala 249, 10 So. 521, in the name of "H.B. Claflin Company," and the plaintiff was permitted to file an amended affidavit "in which its corporate character was duly stated" as a body corporate. This court held, on the authority of Southern Life Insurance Co. v. Roberts, supra, and Alabama Conference v. Price, 42 Ala. 47, that "such an amendment is a mere correction of the description of a plaintiff, already named," and is not a departure. So in Lewis Lumber Co. v. Camody, 137 Ala. 578, 35 So. 126, where the complaint describes the defendant as "the ...