Pearson v. City of Birmingham

• Decision Date: 08 November 1923
• Docket Number: 6 Div. 804.
• Citation: 97 So. 916,210 Ala. 296
• Parties: PEARSON v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

97 So. 916

210 Ala. 296

PEARSON v. CITY OF BIRMINGHAM.

6 Div. 804.

Supreme Court of Alabama

November 8, 1923

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action by the City of Birmingham, as trustee of the estate of Sallie E. Jackson, deceased, against Florine Pearson. From a judgment for plaintiff, defendant appeals. Affirmed.

William Vaughan, J. B. Stephens, and Jas. G. Davis, all of Birmingham, for appellant.

W. J Wynn and W. M. Woodall, both of Birmingham, for appellee.

BOULDIN J.

The original complaint, with few, but important, changes and omissions, is a copy of the Code form in actions of unlawful detainer. Civil Code 1907, vol. 2, p. 1200, form 27. This complaint was stricken on demurrer of defendant. Thereupon plaintiff filed an amended complaint in statutory ejectment. Civil Code 1907, vol. 2, p. 1200, form 29.

Defendant's objection to filing, motion to strike, and demurrer to the amended complaint were overruled. The point here made is that the amendment presented a new cause of action, or worked an entire change of the cause of action.

Section 5367, Code of 1907, deals with two general classes of amendments: First, amendment of "imperfection and defect of form" in the complaint. This is usually done by substituting an amended statement of the cause of action. The original complaint or count is amended out unless already stricken on demurrer. Second, amendments adding new "counts" or "statements of the cause of action" either to the original or amended complaint. In the latter case, the cause proceeds on all remaining counts. The added count must be such as "could have been included in the original complaint." Code of 1907, §§ 5328, 5329. "Original complaint" here means the complaint first filed as perfected, if need be, by amendment correcting any "defect of form." In either class of amendments parties plaintiff or defendant may be stricken out or new ones added. There must not be an entire change of parties plaintiff or defendant. The same parties must appear in all counts remaining before the court. Neither class of amendment shall "relate to new or other causes of action."

Thus far the statute is a mere legislative recognition of the construction given by this court to former statutes. See annotations to section 5367, Code of 1907, and to section 3331, Code of 1896. But section 5367, Code of 1907, added a new provision, defining "new or other causes of action" in these words:

"It shall not be held that such new counts or statements of the cause of action relate to new or other causes of action, so long as they refer to the same transaction property and title and parties as the original, and where this is not apparent on the averments of the pleading, it shall be a question of fact for the jury."

This provision works an entire change in the method of settling the propriety of a proposed amendment. Theretofore it could be determined only on inspection of the pleadings, and was determined by the trial judge as matter of law. Such is still the rule when the identity of subject-matter and parties is "apparent on the averments of the pleadings." But cases arise in which this is not apparent. It may be a case of misdescription of the property really involved. Such error in description may be from vagueness or uncertainty, or it may be by an accurate description, but applicable to a wholly different tract of land, such as giving the wrong government subdivisions. In such case, if an amendment be not allowed giving the correct description in lieu of the incorrect one, then the property really involved would not be within the lis pendens of the suit. There would develop a variance between pleading and proof, and a judgment, if obtained, would be utterly abortive. Again, there may be a misnomer of the party really sued or suing, or such error in the form of action as to preclude an adjudication upon the real title claimed by the respective parties. In such cases the identity of property title, and parties is not apparent, but, looking at the original and amended complaint alone, they may relate to other property, or parties.

Does the amended statute contemplate that in all these matters the question of sameness becomes one of fact for the jury? In Brown v. Loeb, 177 Ala. 106, 58 So. 330, this court carefully considered and construed this statute and the procedure therein outlined. It was a case of amendment correcting a description of lands by government subdivisions. We need not repeat at length what was there said. We approve and follow that case. The result of the decision was that, notwithstanding the original and amended complaints each describes accurately a separate tract of land, it is an issue of fact for the jury to determine whether it was intended to sue for the same lands from the beginning.

We consider the same reasoning as conclusive of the question at bar. The identity of the subject-matter, viz. the transaction, or the property and its title, and the identity of the parties, is by express terms of the statute made the collective fact to be determined by the jury in such cases. The same title in this connection means the title involved when suit brought, and is to preclude bringing in an after-acquired title. There can be but one legal title to the same property between the same parties at the same time. In actual practice little trouble can arise under this rule. Litigants usually know the substance of their quarrel. In most cases when the pleadings are settled they settle down to try their respective claims on their merits. If no evidence is offered on this special issue, the trial court need take no further notice of it, and the verdict should be treated as rendered on the merits of the case presented by the pleadings. If an issue on the identity of the subject-matter or parties is presented by the evidence, and a verdict goes for defendant thereon, plaintiff should be allowed to have a special finding so as not to be concluded against...