Savannah, A. & M. Ry. v. Buford

• Decision Date: 09 April 1895
• Court: Alabama Supreme Court
• Parties: SAVANNAH, A. & M. RY. v. BUFORD.

17 So. 395

106 Ala. 303

SAVANNAH, A. & M. RY. v. BUFORD.

Supreme Court of Alabama

April 9, 1895

Appeal from circuit court, Macon county; W. D. Denson, Judge.

Action by Annie E. Buford against the Savannah, Americus &amp Montgomery Railway for damage caused by the construction of an embankment which stopped up a ditch which drained plaintiff's land. From a judgment for plaintiff defendant appeals. Affirmed.

As originally brought, the action was against the "Savannah, Americus & Montgomery Railroad Company." The defendant filed a plea in abatement alleging that it was sued by a wrong name, and that its real name was the "Savannah, Americus & Montgomery Railway." The plaintiff demurred to this plea, which demurrer was sustained. Subsequently the plaintiff amended her complaint by leave of the court, by striking out the words "Railroad Company," and inserting in lieu thereof "Railway." To the ruling of the court allowing this amendment the defendant duly excepted. The defendant then moved the court to strike the cause from the docket, on the ground that the amendment made an entire change of the party defendant. This motion was overruled, and the defendant duly excepted. The defendant then filed the pleas of the general issue and of the statute of limitations of one year, and issue was joined on each of these pleas. The evidence, as shown by the bill of exceptions, tended to show that the defendant company built and constructed an embankment, upon which was laid its track, upon its right of way, which ran upon the plaintiff's land; that, in the construction of this embankment, it stopped up one of the ditches that drained the surface water from the plaintiff's land; and that in consequence of this embankment, some time in the spring of the year 1892, during the months from March to July, the land of the plaintiff overflowed with surface water, and caused the injuries complained of. The road was built and completed, and was in operation, before July 1 1891. After the plaintiff had introduced testimony in reference to the value of her land, the defendant offered to introduce, as evidence of the value of said land, the assessments which had been made of said land for taxes. It was shown that these assessments had been made by the tax assessor from the tax assessor's books for each preceding year. The plaintiff objected to the introduction in evidence of the assessments, which objection was sustained by the court, and the defendant duly excepted. Upon the introduction of all the evidence the defendant requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The defendant had the right, by ditches or otherwise, to cause the water to flow on the lands of plaintiff, which, in the absence of such ditches, would [not] have flowed in a different direction. As to the water accustomed to flow on the lands of the plaintiff before doing the work which is alleged to be injurious, defendant was not bound to remain inactive. The defendant was permitted to so ditch its right of way and roadbed as to drain them, provided it did so with prudent regard to the welfare of plaintiff, and provided it did no more than concentrate the water, and cause it to flow more rapidly, and in greater volume, on the plaintiff's land." (2) "If the jury believe from the evidence that the embankment was built across plaintiff's lands, and the railroad was built thereon, prior to August 12, 1891, then their verdict must be for the defendant." (3) "The statute of limitations of one year began to run from the time the embankment was built which caused the overflow and washing of the lands, although no actual overflow or washing may have occurred until within one year before the bringing of this suit." (4) "If the embankment which caused the damage complained of was erected prior to August, 1891, then the plaintiff cannot recover in this cause."

Roquemore & White, for appellant.

Norman & Son, for appellee.

BRICKELL C.J.

A corporation must sue and be sued by its proper corporate name,-the name by which it is styled in the law of its creation, or the name which it may have acquired by user.

In this respect the same rules of pleading are applied which would apply if the suit was by or against a natural person. If the corporation sues or is sued by a wrong name, the only mode of taking advantage of the misnomer is by a plea in abatement, and if that mode is not resorted to the error is waived. 1 Mor. Priv. Corp. § 355; Ang. & A. Corp. § 650 et seq.; Smith v. Plank-Road Co., 30 Ala. 650. It is merely elementary to say that the plea must negative the fact that the corporation was known and called by the name by which it sues or is sued, and must aver its true, real name,-the name by which it may rightfully sue or be sued. This is of the essence of all such pleas; otherwise the plaintiff would not be furnished with the means of correcting the error. In the language of the old books, a better writ would not be given him, and there might be repetition of such pleas, to the delay of justice and the multiplication of suits. The plea is formally and accurately drawn. It negatives the fact that the defendant was ever known and called by the name of the "Savannah, Americus & Montgomery Railroad Company," the name by which it was sued, and avers that its true and real corporate name is the "Savannah, Americus & Montgomery Railway." The causes of demurrer to the plea which were assigned, if any were assigned, are not shown by the record. It is probable, the demurrer was sustained upon the theory that there was not a substantial variance between the name by which the defendant was sued and that which was averred in the plea as the true name. Whether this is true or not is not now matter of importance. The complaint was amended by the insertion of the true corporate name, as it was expressed in the plea, and, if there was error in sustaining the demurrer to the plea, the amendment rendered it harmless. If the demurrer had been overruled, the result would have been to put the plaintiff to the necessity of an amendment. Conference v. Price, 42 Ala. 39; Smith v. Plank-Road Co., supra; Caldwell v. Bank, 11 Ala. 549.

The statutes of amendment are very broad. They are remedial, and have received a liberal construction. Code, §§ 2691, 2833. The purpose of the statutes is to promote speedy trials on the merits, and to save the delay and injury incident to the common-law rules of procedure, by which errors in pleading were often fatal, compelling the institution of a new suit. The right of amendment is now coextensive with the errors in pleading which may be committed. There are, however, certain rules which must be observed, and certain limits which cannot be transcended. The form of action may not be changed. There cannot be an entire change of the cause of action, nor an entire change of parties plaintiff or defendant. Either of these things would be the equivalent of the institution of a new suit, rather than the correction of defects or errors of pleading in the suit which was pending. It seems to us, it is quite an error to suppose that the mere change of the name of a party, natural or artificial, though such party may be a sole plaintiff or defendant, can be an entire change of parties. It was very properly observed in Smith v. Plank-Road Co., supra, in which there was, by amendment, a correction of a misnomer of a corporation,-the sole party plaintiff,-"that there is a well-marked distinction between a misnomer which incorrectly names a corporation, but correctly describes it, and the statement in the pleading of an entirely different party." And upon this distinction rests the case of Railway v. McCall, 89 Ala. 375, 7 So. 650, to which we are referred. There was in that case more than a mere misnomer. There was an incorrect description of the corporation. To the misnomer there was added the descriptive averment that the corporation sued was "a foreign corporation incorporated under the law of the state of Georgia, and doing business, by its agents, in said county of Lowndes, state of Alabama." The amendment of the complaint proposed was the striking out the original name and the descriptive averment, inserting in lieu a new name, and describing the defendant as a domestic corporation,-a corporation incorporated under the law of this state. The court observed: "The departure in this case is so radical-a substitution of an Alabama corporation, having an expressed name, for a Georgia corporation, having...