Middlebrooks v. Moore-Handley Hardware Co.

• Court: Alabama Supreme Court
• Writing for the Court: SOMERVILLE, J.
• Citation: Middlebrooks v. Moore-Handley Hardware Co., 209 Ala. 526, 96 So. 410 (Ala. 1923)
• Decision Date: 08 February 1923
• Docket Number: 4 Div. 23.
• Parties: MIDDLEBROOKS v. MOORE-HANDLEY HARDWARE CO. ET AL.

96 So. 410

209 Ala. 526

MIDDLEBROOKS v. MOORE-HANDLEY HARDWARE CO. ET AL.

4 Div. 23.

Supreme Court of Alabama

February 8, 1923

Rehearing Denied May 24, 1923.

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Bill of the Moore-Handley Hardware Company against E. A. Middlebrooks and others. From a decree overruling demurrers to the bill respondent E. A. Middlebrooks appeals. Affirmed.

Farmer Merrill & Farmer, of Dothan, for appellant.

Martin & Crawford and B. F. Reid, all of Dothan, Sollie & Sollie, of Ozark, and Steiner, Crum & Weil, of Montgomery, for appellee.

SOMERVILLE J.

It is a general rule in a court of equity that an original and amended bill are to be regarded simply as an entire bill consisting in fact of but one record (Adams v. Phillips, 75 Ala. 461; Ray's Adm'r v. Womble, 56 Ala. 32, 37); and when a complainant intends to proceed entirely upon an amended bill, he should have the original bill stricken, failing in which "the two together are to be taken as constituting the bill of complaint in the cause" (Brackin v. Newman, 121 Ala. 311, 26 So. 3).

There is nothing in either the introductory recital or in the substance of the last amendment to the bill of complaint which indicates any purpose to abandon the original bill and proceed upon the amendment alone. On the contrary, the amendment was upon its face a mere addition to the original bill as first amended, for it refers in terms to the lands "described in the original bill," and requires the respondents "to answer the allegations of the bill in this cause as heretofore and herein amended." It is worthy of note also that the paragraphs of the amendment are numbered A1 to A7, indicating the idea of addition and not substitution.

There is a palpable difference between "amending a bill as follows," and "amending a bill so as to read as follows," or filing an amended bill as follows." In the two latter cases, the contrary not appearing, it might very well be inferred that the amended bill thus presented is intended as a complete substitute for the original bill; but amending the bill properly means no more than adding to or changing it within its original structure.

There is no merit in appellant's contention that the last amendment operated as an abandonment of the original bill as first amended, and thereby effected a complete change of parties respondent. The amendment in question brings in several new par...