James v. Grenada Motor Co

Decision Date15 October 1934
Docket Number31349
Citation171 Miss. 76,156 So. 871
CourtMississippi Supreme Court
PartiesJAMES et al. v. GRENADA MOTOR CO

Division A

1 JUDGMENT.

Where note provided for payment of attorney's fees in event of suit, but fixed no specific sum, and court did not submit question of attorney's fees to jury and no proof as to fees was offered, payee was not entitled to default judgment for ten per cent. attorney's fees.

2 PARTIES.

In action on note brought in trade-name of payee, that declaration was amended so that suit was brought in name of individual doing business under the trade name held not error, where individual was real party in interest who owned note (Code 1930, sec. 567).

HON JNO. F. ALLEN, Judge.

APPEAL from the circuit court of Grenada county HON. JNO. F. ALLEN, Judge.

Action by the Grenada Motor Company against E. L. James and another. From the judgment, the defendants appeal. Affirmed as modified.

Affirmed as modified.

W. M. Mitchell, of Grenada, for appellant.

This court has held that under section 567, Code of 1930, the name of one nominal plaintiff may be substituted for another nominal plaintiff.

Dento v. Stephens, 32 Miss. 194.

But this court has nowhere held that this statute authorizes an entirely different party from the original plaintiff to be substituted for said original plaintiff.

Miss. R. R. Co. v. Maples, 107 Miss. 720.

It was error for the court to render judgment by default for a fixed amount of attorney's fees, where the instrument sued upon itself provided for a "reasonable" attorney's fee.

It was the duty of the court to require that this question be submitted to a jury to hear the evidence and pass upon the question of what was a reasonable amount to be fixed for the attorney fee in this case; and having failed to do this, no judgment could be rendered for any amount of attorney's fee, in any event.

S. C. Mims, Jr., of Grenada, for appellee.

Defendants were not placed at any disadvantage by virtue of the amendment, and were in court by their attorney at every stage of the proceedings and had every opportunity to meet the case on its merits.

Section 567, Code of 1930; Sam v. Allen, 120 So. 568; McCarty v. Key, 87 Miss. 248, 39 So. 780; Kelly v. Continental Casualty Co., 87 Miss. 438, 40 So. 1; McCue v. Massey, 90 Miss. 124, 43 So. 2; Jones v. Clemmer, 98 Miss. 508, 54 So. 4; American Ry. Exp. Co. v. Roby, 129 Miss. 120, 91 So. 499; Hall v. Stokely, 126 So. 475.

The appellee confesses error as to attorney's fee, and hereby agree that this amount be remitted and deducted from the amount of the judgment.

OPINION

McGowen, J.

The Grenada Motor Company brought an action at law in the circuit court against the appellants, E. L. James and Ada James, seeking to recover upon a note payable to the Grenada Motor Company. The appellants appeared and filed a plea of nul tiel corporation. On July 28, 1933, the court entered an order sustaining a motion filed by A. J. McCaslin for leave to amend the declaration so as to show that the said A. J. McCaslin was the real party in interest owning the Grenada Motor Company and trading in that name. McCaslin was allowed sixty days to amend the declaration, and thereafter, in vacation, the amended declaration was filed in the name of A. J. McCaslin, trading as the Grenada Motor Company, against the appellants. Five or six months later, at a term of court, the appellants moved to strike the declaration as amended from the files, which motion was overruled by the court. Thereupon the appellants declined and failed to plead further, and a judgment by default was entered for the amount of the note, three hundred eighty-five dollars, and ten per cent. attorney's fees. The note provided for the payment of attorney's fees in the event of suit, but fixed no specific sum to be so paid. The court did not submit the question of attorney's fees upon a writ of inquiry to a jury, nor was any proof on that subject offered. An appeal is prosecuted here from that judgment.

First, appellee concedes in this court that he was not entitled to the judgment by default for the attorney's fees as allowed by the lower court, and to that extent the cause will be reversed.

Second it is next contended that the court was without power to allow the amendment; such amendment not being permissible under section 567, Code of 1930. Appellants rely upon the case of Mississippi Central R. Co. v. Maples, 107 Miss. 720, 65 So. 644, 645, in which case Mrs. J. J. Maples brought a suit in a justice of the peace court, and a judgment was rendered therein. There was an appeal brought to the circuit court, and the court permitted an...

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