Springer v. Sullivan, 6 Div. 173

CourtAlabama Supreme Court
Writing for the CourtFOSTER, J.
Citation119 So. 851,218 Ala. 645
Docket Number6 Div. 173
Decision Date18 October 1928
PartiesSPRINGER et al. v. SULLIVAN.

119 So. 851

218 Ala. 645

SPRINGER et al.
v.
SULLIVAN.

6 Div. 173

Supreme Court of Alabama

October 18, 1928


As Modified on Denial of Rehearing, Jan. 24, 1929

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.

Assumpsit by Dewey Sullivan against Manly Springer and Grady Springer, individually and as partners under the name of Springer Bros. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed. [119 So. 852]

R.C. Price, of Tuscaloosa, for appellants.

H.A. & D.K. Jones, of Tuscaloosa, for appellee.

FOSTER, J.

Suit was instituted by Dewey "Selden" and Marion Baines for the contract price agreed on for cutting timber for defendant. It developed that one of the plaintiffs was not named Dewey "Selden," but Dewey Sullivan, and plaintiffs were allowed to amend by changing his name, and later by striking Baines as a party plaintiff. This was over objection and exception by defendants, who also moved to enter a discontinuance because of an entire change of parties plaintiff resulting from the above situation.

If an error is made in the name of a party, it may be corrected by an amendment. Whether the amendment introduces a new party, or relates to the same party by a different name, is a question of fact for the court to determine. Evans v. Richardson, 76 Ala. 329; South & N.A.R. Co. v. Small, 70 Ala. 499; Section 9513, Code 1923; Beggs v. Wellman, 82 Ala. 391, 2 So. 877.

The amendment alleged that the name Selden was erroneously written instead of the name Sullivan, which is the true name of the plaintiff first mentioned; that there is no such person as Dewey Selden, and that Dewey Sullivan was referred to and intended.

Defendants objected to the change, but did not take issue upon the allegations made as to the error in the true name of such plaintiff. The allegations are therefore admitted. The action of the court was without error.

As there was no change of parties, it was permissible to further amend by striking one of the plaintiffs. Section 9513, Code.

When a case at law is tried by a judge without a jury, and illegal evidence is introduced, it will require a reversal of the judgment, unless the remaining evidence is without conflict and sufficient to support the judgment. Little v. Peoples Bank of Mobile, 209 Ala. 620, 96 So. 763; Deal v. Houston Co., 201 Ala. 431, 78 So. 809; Bank of Talladega v. Chaffin, 118 Ala. 246, 24 So. 80.

Plaintiff sued for the contract price for cutting timber for defendant's sawmill. There was no dispute as to the contract price or amount of timber cut. The cutting was done in February, 1927, and suit brought in March, 1927. Plaintiff stopped cutting about the 1st of March, and defendant claimed an offset or recoupment for damages in not cutting all the timber agreed to be cut. On the trial it developed that there was no time fixed by...

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33 practice notes
  • Roan v. Smith, 1 Div. 770
    • United States
    • Supreme Court of Alabama
    • September 21, 1961
    ...it is plain that error was committed. Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216; Springer v. Sullivan, 218 Ala. [272 Ala. 542] 645, 119 So. 851. We take judicial knowledge of our own records. Se Roan v. McCaleb, 264 Ala. 31, 84 So.2d The evidence in question now before this court concern......
  • Hughes v. Cox
    • United States
    • Supreme Court of Alabama
    • June 12, 1992
    ...39 So.2d 706 (1949); Capital Transp. Co. v. Alabama Public Service Comm'n, 268 Ala. 416, 108 So.2d 156 (1959). 5 In Springer v. Sullivan, 218 Ala. 645, 119 So. 851 (1928), this Court held that Page 470 when an error is made in the naming of a party, the error may be corrected by an amendmen......
  • Pope v. Howle, 7 Div. 162
    • United States
    • Supreme Court of Alabama
    • June 22, 1933
    ...legal and material evidence is uncontradicted and is sufficient to support and justify the judgment rendered. Springer et al. v. Sullivan, 218 Ala. 645, 119 So. 851; Little v. People's Bank of Mobile, 209 Ala. 620, 96 So. 763; First National Bank of Talladega v. Chaffin et al., 118 Ala. 246......
  • Aetna Ins. Co. v. Kacharos, 6 Div. 313.
    • United States
    • Supreme Court of Alabama
    • March 9, 1933
    ...reversal of the judgment, unless the remaining evidence is without conflict and sufficient to support the judgment. Springer v. Sullivan, 218 Ala. 645, 119 So. 851; Deal v. Houston County, 201 Ala. 431, 78 So. 809. The statement originated in First National Bank v. Chaffin, 118 Ala. 246, 24......
  • Request a trial to view additional results
33 cases
  • Roan v. Smith, 1 Div. 770
    • United States
    • Supreme Court of Alabama
    • September 21, 1961
    ...it is plain that error was committed. Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216; Springer v. Sullivan, 218 Ala. [272 Ala. 542] 645, 119 So. 851. We take judicial knowledge of our own records. Se Roan v. McCaleb, 264 Ala. 31, 84 So.2d The evidence in question now before this court concern......
  • Hughes v. Cox
    • United States
    • Supreme Court of Alabama
    • June 12, 1992
    ...39 So.2d 706 (1949); Capital Transp. Co. v. Alabama Public Service Comm'n, 268 Ala. 416, 108 So.2d 156 (1959). 5 In Springer v. Sullivan, 218 Ala. 645, 119 So. 851 (1928), this Court held that Page 470 when an error is made in the naming of a party, the error may be corrected by an amendmen......
  • Pope v. Howle, 7 Div. 162
    • United States
    • Supreme Court of Alabama
    • June 22, 1933
    ...legal and material evidence is uncontradicted and is sufficient to support and justify the judgment rendered. Springer et al. v. Sullivan, 218 Ala. 645, 119 So. 851; Little v. People's Bank of Mobile, 209 Ala. 620, 96 So. 763; First National Bank of Talladega v. Chaffin et al., 118 Ala. 246......
  • Aetna Ins. Co. v. Kacharos, 6 Div. 313.
    • United States
    • Supreme Court of Alabama
    • March 9, 1933
    ...reversal of the judgment, unless the remaining evidence is without conflict and sufficient to support the judgment. Springer v. Sullivan, 218 Ala. 645, 119 So. 851; Deal v. Houston County, 201 Ala. 431, 78 So. 809. The statement originated in First National Bank v. Chaffin, 118 Ala. 246, 24......
  • Request a trial to view additional results

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