Steiner Bros. v. Stewart
| Decision Date | 28 June 1902 |
| Citation | 33 So. 343,134 Ala. 568 |
| Parties | STEINER BROS. v. STEWART. [a1] |
| Court | Alabama Supreme Court |
Appeal from city court of Bessemer; B. C. Jones, Judge.
Action by M. J. Stewart against Sig Steiner and Bernard Steiner doing business as Steiner Bros., and another, changed by amendment to an action against Steiner Bros. a corporation. Judgment for plaintiff. Defendant appeals, complaining of the allowance of the amendment. Reversed.
Trotter & Odell, for appellant.
Estis & Smith, for appellee.
This suit originated in a justice court, and was brought against "Sig Steiner and Bernard Steiner, doing business as Steiner Bros., and Alex Dallas." This is shown both by the summons and the caption to the complaint. Before trial in justice court, plaintiff amended her complaint by striking out Dallas as a party defendant, leaving it as a complaint against the two named Steiners doing business as Steiner Bros. After appeal to the city court, she again amended her complaint, the effect of which was to eliminate as parties defendants Sig and Bernard Steiner, doing business as Steiner Bros., and to substitute in their stead as a party Steiner Bros., a corporation. The point was made in the court below by proper objection, and is urged here, that the amendment wrought an entire change of parties. The suit was clearly one against the two Steiners as individuals, and not against Steiner Bros., a partnership, if it be conceded that the averment sufficiently shows that Sig and Bernard Steiner were partners doing business under that firm name. Compton v Smith, 120 Ala. 233, 25 So. 300; Baldridge v Eason, 99 Ala. 516, 13 So. 74; Blackman v. Hardware Co., 106 Ala. 458, 17 So. 629; Bolling v Speller, 96 Ala. 269, 11 So. 300; Sawmill Co. v. Smith, 78 Ala. 108; Shapard v. Lightfoot, 56 Ala. 506. We have, then, to deal with an amendment that eliminates the only two parties defendant, and inserts in their place an entirely different party, a corporation. It is clear this cannot be done; for the words after the names "Sig Steiner and Bernard Steiner," the only parties sued, to wit, "doing business as Steiner Bros.," were merely descriptio personæ of Sig and Bernard Steiner, and therefore not material. The effect of the amendment was, as we have said, to strike out the only parties sued, and leave the description,--the immaterial part,--and to add an entirely new party defendant. The case, therefore, is not within the principles applied in Ex parte...
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