Smith v. Yearwood, 6 Div. 248

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation197 Ala. 680,73 So. 384
PartiesSMITH v. YEARWOOD et al.
Docket Number6 Div. 248
Decision Date30 November 1916

73 So. 384

197 Ala. 680

SMITH
v.
YEARWOOD et al.

6 Div. 248

Supreme Court of Alabama

November 30, 1916


Appeal from Circuit Court, Cullman County; R.C. Brickell, Judge.

Action by Joe Smith, pro ami, against C.C. Yearwood and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Tumlin & Ingram and M.F. Parker, all of Cullman, for appellant.

F.E. St. John and A.A. Griffith, both of Cullman, for appellees.

THOMAS, J.

The plaintiff, as named in the original summons and caption of the complaint, was "Mrs. Houston Smith, pro ami, Joe Smith." In count 2 of the original complaint, the plaintiff was named as "Joe Smith," without naming his next friend. At the trial, by leave of the court first had and obtained, the plaintiff amended his complaint as follows, to wit: By amending the caption of the complaint where the same reads, "Mrs. Houston Smith, pro ami, Joe Smith," to read, instead, "Joe Smith, by his next friend and mother, Mrs. Houston Smith"; and by striking from said complaint counts 1 and 2 and adding counts 4 and 5, which are set out in the amendment. The defendants moved to strike the amended complaint, on the ground that the amendment made an entire change of parties plaintiff, which motion the court granted.

The defendants were sued in count 2 by the real plaintiff, Joe Smith, which count commences as follows: "The plaintiff, Joe Smith, complains of the aforesaid defendants, and alleges that heretofore, etc." This complaint appears to have been carelessly drawn, yet under the pleadings in the case the amendment was not a departure. It has been held that an amendment, striking out the name of a nominal plaintiff or inserting the name of a nominal plaintiff, is allowable.

In the case of Howland v. Wallace, 81 Ala. 238, 2 So. 96, Chief Justice Stone said:

"Infancy *** is not a defense in bar of the action. It must be pleaded in abatement. *** And under our liberal system of amendments, if this defense had been properly interposed, an amendment by introducing a next friend would have been allowable."

Section 2490 of the Code of 1907 is as follows:

"In all cases where suits are brought in the name of the person having the legal right for the use of another, the beneficiary must be considered as the sole party on the record."

The name of the plaintiff is stated in the caption of the original complaint, and referred to in counts 1 and 2 thereof. It was a suit in the name of...

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18 practice notes
  • Crawford v. Carlisle, 4 Div. 878
    • United States
    • Supreme Court of Alabama
    • June 30, 1921
    ...1913, and left as heir at law and next of kin the complainant and her husband, the next friend by whom the infant sues. Smith v. Yearwood, 197 Ala. 680, 73 So. 384. On due application administration of an estate may be removed from the probate court to a court of equity for construction of ......
  • Crawford v. Mills, 4 Div. 803
    • United States
    • Supreme Court of Alabama
    • June 29, 1918
    ...of parties was made by the amendment made under section 5367 of the Code. Plunkett v. Dendy, 197 Ala. 262, 72 So. 525; Smith v. Yearwood, 197 Ala. 680, 73 So. 384; Rarden Merc. Co. v. Whiteside, 145 Ala. 617, 39 So. 576; Vinegar Bend Co. v. Chicago Co., 131 Ala. 411, 30 So. 776; Evans Co. v......
  • Sovereign Camp, W.O.W. v. Reed, 7 Div. 240.
    • United States
    • Alabama Supreme Court
    • November 16, 1922
    ...of amendment to the complaint, were by a minor suing by a next friend, and were in form required by law of such suits. Smith v. Yearwood, 197 Ala. 680, 73 So. 384; Robinson Lumber Co. v. Sager, 199 Ala. 675, 75 So. 309; Alabama Power Co. v. Hamilton, 201 Ala. 62, 66, 77 So. 356; Wynn v. Hof......
  • Alabama Power Co. v. Hamilton, 7 Div. 815
    • United States
    • Supreme Court of Alabama
    • November 15, 1917
    ...benefit of a real party beneficially interested? The beneficiary, in fact and in law, is the sole party to the record. Smith v. Yearwood, 73 So. 384. As protecting the rights of such beneficiary and sole party to the record, it has been held that the complaint may be amended by the adding o......
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18 cases
  • Crawford v. Carlisle, 4 Div. 878
    • United States
    • Supreme Court of Alabama
    • June 30, 1921
    ...1913, and left as heir at law and next of kin the complainant and her husband, the next friend by whom the infant sues. Smith v. Yearwood, 197 Ala. 680, 73 So. 384. On due application administration of an estate may be removed from the probate court to a court of equity for construction of ......
  • Crawford v. Mills, 4 Div. 803
    • United States
    • Supreme Court of Alabama
    • June 29, 1918
    ...of parties was made by the amendment made under section 5367 of the Code. Plunkett v. Dendy, 197 Ala. 262, 72 So. 525; Smith v. Yearwood, 197 Ala. 680, 73 So. 384; Rarden Merc. Co. v. Whiteside, 145 Ala. 617, 39 So. 576; Vinegar Bend Co. v. Chicago Co., 131 Ala. 411, 30 So. 776; Evans Co. v......
  • Sovereign Camp, W.O.W. v. Reed, 7 Div. 240.
    • United States
    • Alabama Supreme Court
    • November 16, 1922
    ...of amendment to the complaint, were by a minor suing by a next friend, and were in form required by law of such suits. Smith v. Yearwood, 197 Ala. 680, 73 So. 384; Robinson Lumber Co. v. Sager, 199 Ala. 675, 75 So. 309; Alabama Power Co. v. Hamilton, 201 Ala. 62, 66, 77 So. 356; Wynn v. Hof......
  • Alabama Power Co. v. Hamilton, 7 Div. 815
    • United States
    • Supreme Court of Alabama
    • November 15, 1917
    ...benefit of a real party beneficially interested? The beneficiary, in fact and in law, is the sole party to the record. Smith v. Yearwood, 73 So. 384. As protecting the rights of such beneficiary and sole party to the record, it has been held that the complaint may be amended by the adding o......
  • Request a trial to view additional results

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