Holloway v. Calvin

• Decision Date: 05 February 1920
• Docket Number: 2 Div. 687
• Citation: 84 So. 737,203 Ala. 663
• Parties: HOLLOWAY v. CALVIN.
• Court: Alabama Supreme Court

84 So. 737

203 Ala. 663

HOLLOWAY v. CALVIN.

2 Div. 687

Supreme Court of Alabama

February 5, 1920

On Rehearing, May 20, 1920

Appeal from Circuit Court, Dallas County; D.M. Miller, Judge.

Assumpsit by Mrs. Andrew M. Calvin against Mrs. A.F. Holloway administratrix of the estate of Mrs. Sarah L. Bland. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint is on the common counts for work done and supplies furnished by plaintiff to defendant's intestate from May 1913, to May, 1916, and from May, 1910, to May, 1916. The caption is:

"Mrs. Andrew M. Calvin, Plaintiff, v. Mrs. A.F Holloway, administratrix of the estate of Mrs. Sarah L Bland, defendant."

The verified account placed in evidence by plaintiff is as follows:

"Estate of Mrs. S.L. Bland to Mrs. Andrew M. Calvin. To services rendered and groceries furnished for eight years for her beginning 1908 and ending May 17, 1916."

Lee Cowart and W.J. Slaughter, both of Birmingham, for appellant.

S.F Hobbs, of Selma, for appellee.

SOMERVILLE J.

It is well settled that when the caption of a complaint merely appends to the name of a party the word "executor" or "administrator," omitting the explanatory connective "as," and there is nothing else in the caption or the complaint to show that the party sues or is sued in his representative capacity, the word of representation is but descriptio personae, and the suit is by or against such party in his individual capacity only. Lucas v. Pittman, 94 Ala. 616, 10 So. 603; A.C. etc., Ry. Co. v. Heald, 178 Ala. 636, 59 So. 461.

But where the allegations of the complaint indicate with reasonable certainty that a plaintiff sues, or a defendant is sued, in a representative capacity, though there be no express or specific averment thereof, this is sufficient to fix the character of the suit. Lucas v. Pittman, supra; K.C., etc., Ry. Co. v. Matthews, 142 Ala. 298, 39 So. 207. In the latter case the count in question alluded several times to plaintiff's "intestate," from which it was observed by McClellan, C.J., that the count "by its own terms shows in a way that the plaintiff is therein claiming damages in her representative capacity." In the instant case, the complaint not only alleges that the claim is for work done for, and goods furnished to, "defendant's intestate" at her request, but also that "the claim which is the foundation of each count of this complaint, verified as required by law, was filed in the probate court of Dallas county," and that "more than 12 months have elapsed since the grant of letters of administration upon the estate of Mrs. Sarah L. Bland, deceased, to defendant." We think that the complaint, in connection with its caption, shows unmistakably that the defendant is sued in her representative capacity, for a debt contracted by her intestate, and due to plaintiff from said intestate's estate. Defendant was not, as to this, entitled to the general affirmative charge.

So far as the judgment is concerned, the minute entry shows that it was rendered against defendant, "as administratrix," etc., so that no technical disadvantage can result to her by reason of any lack of precision in the complaint.

The verified claim, as shown by the records of the probate court was properly admitted in evidence. The statement of such a claim...