Union Indemnity Co. v. Webster

• Decision Date: 25 October 1928
• Docket Number: 6 Div. 950
• Parties: UNION INDEMNITY CO. v. WEBSTER.
• Court: Alabama Supreme Court

118 So. 794

218 Ala. 468

UNION INDEMNITY CO. v. WEBSTER.

6 Div. 950

Supreme Court of Alabama

October 25, 1928

Rehearing Denied Dec. 6, 1928

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action on surety bond by Joseph Ellis Webster against the Union Indemnity Company and another. Judgment for plaintiff, and defendant named appeals. Affirmed.

F.D McArthur, of Birmingham, for appellant.

London Yancey & Brower and Jim C. Smith, all of Birmingham, for appellee.

THOMAS J.

The suit was for damages against a deputy sheriff and surety on his official bond. The deputy having died after summons and service, the suit was discontinued as to him, and proceeded to judgment against the surety.

The plaintiff, as he ran from the direction of or within 25 or 50 yards of a still, from which whisky was running, was shot by an officer in his apprehension and arrest. Plaintiff was the only person seen by the officers at or leaving the still, and said officers were about 75 or 100 yards from plaintiff when he ran and was shot.

The original complaint was filed February 2, 1926, to which demurrer was interposed on March 5, 1926. The original complaint was amended October 9, 1926, and February 15, 1927 and on the last-named date the suggestion of the death of codefendant and principal in the bond sued on was made by defendant's sworn plea in abatement, and the death of John Davis Jones was admitted by plaintiff. The latter did not ask leave to revive against the personal representative of the principal, when known, but made a motion to strike the plea, which was sustained. There was no demurrer to the plea. After said ruling, plaintiff amended the complaint by striking as a party defendant, the principal in the official bond, leaving as only defendant the surety. The motion for discontinuance was again made by defendant and stricken on plaintiff's motion. The proper way to raise a question of law on the sufficiency of a plea (that is not frivolous on its face) is by demurrer, pointing out the defect and giving opportunity for amendment, if the plea be such as is subject to amendment. Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54; Powell v. Crawford, 110 Ala. 294, 18 So. 302; Murphy v. Farley, 124 Ala. 279, 27 So. 442; McAnally v. Hawkins Lumber Co., 109 Ala. 397, 19 So. 417; Williamson v. Mayer Bros., 117 Ala. 253, 23 So. 3;

Ex parte L. & N.R. Co., 211 Ala. 531, 100 So. 843.

The distinction between a motion in writing, made part of the pleading and the record proper, under section 9459, Code, and that for a new trial and ruling thereon, under section 6088, Code, has been heretofore declared by this court. King v. Scott, 217 Ala. 511, 116 So. 681. The plea in writing and sworn to, when duly filed, became a part of the record proper and will be so reviewed (section 9459, Code; Gen.Acts 1915, 598; Huntsville Knitting Mills v. Butner, 200 Ala. 288, 290, 76 So. 54; Collins v. M. & O.R. Co., 210 Ala. 234, 97 So. 631; Lusk v. Champion Register Co., 201 Ala. 596, 79 So. 16), as before the amended complaint, when it was stricken (B.R., L. & P. Co. v. Fox, 174 Ala. 657, 669, 56 So. 1013).

In determining the right of amendment and procedure to judgment against the surety alone, after death of the principal obligor of the official bond, without revivor against the personal representative of deceased, when known, it is necessary to examine pertinent provisions of several statutes.

The original act, as it now appears in its codification (Gen.Acts 1915, p. 605), gave the right of amendment to parties, "whether served or not," without making "a discontinuance as to any defendant not stricken out," etc. Section 5718, Code; Crawford v. Mills, 202 Ala. 62, 79 So. 456; Patterson v. Patrick, 202 Ala. 363, 80 So. 445; Carswell v. B.F. Kay & Son, 214 Ala. 619, 108 So. 518; Wright v. McCord, 205 Ala. 122, 88 So. 150; Ferguson v. State ex rel. Acton, 215 Ala. 244, 110 So. 20; Nashville, etc., v. Cox, 18 Ala.App. 672, 94 So. 247. A further statute providing for amendments to pleadings, while the cause is in progress to judgment, as to striking or adding new parties plaintiff or defendant, when not making a complete change of parties, etc., is Code, § 9513. Copeland v. Dixie Construction Co., 216 Ala. 257, 113 So. 82; B.R.R. Co. v. Ellenburg, 215 Ala. 395, 111 So. 219. And in the same connection we shall later examine the nature of the liability and survival thereof, and procedure to judgment in an action on an official bond in the absence of the principal indicated in such bond. Section 2612, Code; Bradford v. State, 201 Ala. 170, 77 So. 696; Id., 204 Ala. 46, 85 So. 435; Fite v. Pearson, 215 Ala. 521, 111 So. 15.

The provisions of section 5718 (Gen Acts of 1915, p. 605) and those of section 9513 of the Code are consistent as to amendment of parties, and are in accord with the trend of modern reformed procedure. Crawford v. Mills, 202 Ala. 62, 79 So. 456. It thus provides for the right of amendment, when the substantial rights of the parties before the court cannot be injuriously affected by the amendment. Whether served or not, such amendment shall not work a discontinuance as to any defendant not stricken out. It is provided further that "the plaintiff may recover such judgment as he may be entitled to against one or more of the defendants." The decision in Long v. Gwin, 188 Ala. 196, 66 So. 88 (assumpsit on note), was that approving the dismissal as to the parties not served, under section 5718, Code of 1923, or section 2502, Code of 1907, and to the effect that a discontinuance as to one defendant did not so operate as to all. See, also, Strickland v. Wedgeworth, 154 Ala. 654, 45 So. 653 (ex delicto); Montgomery G.L. Co. v. M. & E.R. Co., 86 Ala. 372, 5 So. 735 (ex delicto); Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L.R.A. (N.S.) 670, 14 Ann.Cas. 1139 (damages for assault and battery); and Crawford v. Mills, 202 Ala. 62, 79 So. 456, was upon the principal and sureties on a public warehouse bond, and the amendment was by striking the principal.

The instant suit was brought against the principal and surety, who were duly served with process. The death of one defendant did not, under the common law, operate as a discontinuance as to the defendants living and before the court. Garrett v. Lynch, 44 Ala. 324; Bachus v. Mickle, 45 Ala. 445; Ex parte Hall, 47 Ala. 675; Hayes v. Miller, 150 Ala. 621, 43 So. 818, 11 L.R.A. (N.S.) 748, 124 Am.St.Rep. 93. The case of Garrett v. Lynch, supra, was a construction of section 5717 of the Code, as section 2546 and section 2547 of the Revised Code of 1867, or Acts 1866-67, p. 699, §§ 1, 2, as we shall later indicate. And the common-law rule as to discontinuance, by amendment, of parties not found (authority cited in case below), related to suits "founded on contract," and it was there observed that "the rule should be limited to such cases." Slade v. Street, 77 Ala. 576, 578.

It follows that the terms of the foregoing statutes authorized the amendment and procedure to judgment against the sureties, alone, on the official bond for causes and injuries within that undertaking, when the death of the principal occurs after service of process, and plaintiff, by appropriate amendment, declines to proceed against the personal representative of such decedent. Such is the effect when the provisions of section 5717 of the Code for revivor are to be considered with the express provisions of section 5718, dealing with the right of amendment without a discontinuance, and to which we have adverted. The former statute is permissive only, and judgment may be rendered, as we have indicated, against the survivor, without revivor as to a personal representative of deceased codefendant. That this statute is permissive merely is indicated in Garrett v. Lynch, 44 Ala. 324, and Hayes v. Miller, 150 Ala. 621, 43 So. 818, 11 L.R.A. (N.S.) 748, 124 Am.St.Rep. 93. In the latter case Mr. Chief Justice Anderson observed that judgment "could have been rendered against Hayes without a revivor caused by the death of his codefendant, Kelly," citing Garrett v. Lynch, supra, and section 43 of the Code of 1896, which is section 5717 of the Code of 1923. And such is the effect of the two statutes considered together as a part of judicial procedure, and taken in connection with section 5715 of the Code, to the effect that no action abates by death or disability "of the plaintiff or defendant," if the "cause of action survive or continue," and section 5712 of the Code providing that "all actions on contracts, express or implied; all personal actions, except for injuries to the reputation, survive in favor of and against the personal representatives."

In Garrett v. Lynch, 44 Ala. 324, 327, the right to proceed, after the death of one of the defendants, to take judgment by default against the remaining defendants, it is said that this action without a revivor did not amount to a discontinuance as the result of an unauthorized dismissal, saying of section 5717, Code of 1923 (sections 2546, 2547, of the Revised Code):

"Here the suit could not proceed against the dead defendant, but could only proceed against his representative upon revival. And this revival is optionary with the plaintiff. He has the remedy existing before this statute. He may permit the suit against the dead defendant to abate, and bring a new action against his representative, or he may revive this suit under the statute. The language of the statute is positive and peremptory in giving the right of revival in this case, but it is permissive in requiring the exercise of the right. It expressly declares that the suit 'may be revived against the representatives of the deceased obligor or obligors.' It does not require that this right shall be exercised,

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