Lewis Lumber Co. v. Camody

• Decision Date: 30 June 1903
• Citation: 35 So. 126,137 Ala. 578
• Parties: LEWIS LUMBER CO. v. CAMODY.
• Court: Alabama Supreme Court

35 So. 126

137 Ala. 578

LEWIS LUMBER CO. v. CAMODY.

Supreme Court of Alabama

June 30, 1903

Appeal from Circuit Court, Madison County; Osceola Kyle, Judge.

Action by M. C. Camody against the Lewis Lumber Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The complaint described the parties defendant as the "Lewis Lumber Company, a firm composed of B. A. Lewis et als., and B. A. Lewis individually." To this complaint the defendants demurred, and before that demurrer was passed upon by the court, and after the passing of several terms of the court, the plaintiff asked leave of the court to amend his complaint by changing the caption thereof by striking out the words, "a firm composed of B. A. Lewis et als., and B A. Lewis individually," and by inserting in lieu thereof the following: "A corporation organized under the laws of the state of Maine." This amendment was allowed over the objection of the defendants, and then, after the allowance and filing of the amendment, the defendant Lewis Lumber Company, a corporation, appeared specially, and for no other purpose, and moved the court to strike the amendment from the files. The court overruled this motion, to which there was an exception. The defendant then further appeared specially, and for no other purpose, and moved the court to quash the return and summons, because they fail to show any service on any authorized officer or agent of the corporation. This motion was, on motion of the plaintiff stricken from the files. In support of this motion the defendant was permitted to offer in evidence the summons and the return of the sheriff thereon, and this was all the evidence offered upon that question. The summons was issued for the "Lewis Lumber Company, a firm composed of B. A Lewis et als., and B. A. Lewis individually," and the return was as follows: "Executed by serving a copy of the within summons and complaint on Lewis Lumber Company, by leaving a copy with B. A. Lewis, treasurer." From a judgment in favor of the plaintiff, the present appeal is prosecuted.

Oscar R. Hundley, for appellant.

David A. Grayson and John H. Wallace, for appellee.

TYSON J.

Although there are a number of errors assigned, but two of them are insisted upon in brief of counsel. The first of these is predicated upon the action of the court in overruling the defendant's motion to strike the amendment of the complaint, which had been allowed. This amendment consists in striking out of the caption of the complaint the words "a firm composed of B. A. Lewis et als. and B. A. Lewis individually," and inserting in lieu thereof the words "a corporation...