Smith v. Yearwood

• Decision Date: 30 November 1916
• Docket Number: 6 Div. 248
• Parties: SMITH v. YEARWOOD et al.
• Court: Alabama Supreme Court

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 Mrs. Houston Smith, the nominal plaintiff, for the benefit of Joe Smith, the real plaintiff. The beneficiary is the sole party on the record, and such a complaint can be amended by adding or striking out the nominal plaintiff. Harris v. Plant, 31 Ala. 639; Amer. Un. Tel. Co. v. Daughtery, 89 Ala. 191, 7 So. 660; Southern Ry. Co. v. Brewster, 9 Ala.App. 597, 63 So. 790; Ex parte Nicrosi, 103 Ala. 104, 15 So. 507; Cowan v. Campbell, 131 Ala. 211, 31 So. 429; Manistee Mill Co. v. Hobdy, 165 Ala. 411, 15 So. 507.

It appears from the bill of exceptions in this case that after the court had charged the jury, and just before it had given the affirmative charge for the defendants, the plaintiff asked leave to amend the complaint by striking out the name of Mrs. Houston Smith, as next friend, and leaving Joe Smith as the sole party plaintiff. It had been shown by the evidence that Joe Smith had become of age since the institution of the suit and prior to the date of the trial. Campbell v. Bowne, 5 Paige Ch. (N.Y.) 34; Tucker v. Wilson, 68 Miss. 698, 9 So. 898; Hamlin v. Stevenson, 34 Ky. 597. The court declined to allow the amendment, on the ground that it came too late, and then read the affirmative charge to the jury.

The court was in error in not...