Vinegar Bend Lumber Co. v. Chicago Title & Trust Co.

• Citation: 30 So. 776,131 Ala. 411
• Parties: VINEGAR BEND LUMBER CO. v. CHICAGO TITLE & TRUST CO.
• Decision Date: 13 November 1901
• Court: Supreme Court of Alabama

30 So. 776

131 Ala. 411

VINEGAR BEND LUMBER CO. v. CHICAGO TITLE & TRUST CO.

Supreme Court of Alabama

November 13, 1901

Appeal from circuit court, Washington county; A. H. Alston Supernumerary Judge.

Action by the Charles Munson Belting Company against Ebenezer Turner and others, doing business under the name of Vinegar Bend Lumber Company, and another. Thereafter the Chicago Title &amp Trust Company was substituted as plaintiff. Judgment for plaintiff, and defendant lumber company appeals. Reversed.

Chas L. Bromberg, Jr., for appellant.

W. D Dunn, Pillans, Hanaw & Pillans, and E. P. Wilson, for appellee.

HARALSON J.

The suit was commenced by the Charles Munson Belting Company, a foreign corporation, against Ebenezer Turner, Herbert Turner and Verda E. Turner, partners doing business under the firm name and style of Vinegar Bend Lumber Company, and the Vinegar Bend Lumber Company, a domestic corporation.

The defendant, Verda E. Turner, pleaded coverture, which plea was confessed and her name was stricken out as a defendant. An amendment was also allowed, striking out the Vinegar Bend Lumber Company as a corporation, leaving the suit in the name of the Munson Belting Company, a corporation, against Ebenezer Turner and Herbert Turner, as partners doing business under the name and style of Vinegar Bend Lumber Company.

E. T. Ames, a witness for the plaintiff, testified on the trial, that he represented the Chicago Title & Trust Company, the assignee of the plaintiff, the Charles Munson Belting Company. Thereupon, the plaintiff by leave of the court amended the complaint so as to make the suit as one by the Chicago Title & Trust Company, as assignee of the Charles Munson Belting Company, as plaintiff. The defendant thereupon moved the court to enter a discontinuance of the cause of action, which motion the court overruled and defendant excepted.

The statute provides, that amendments must be made during the progress of the suit, by striking out or adding new parties plaintiff or defendant. The only limitation on this right is that a party shall not be allowed to depart in the complaint entirely from the process, or substitute an entirely new cause of action, or to make an entire change of parties. Code, § 3331; Crimm's Adm'rs v. Crawford, 29 Ala. 623, 626. So we have held, that if one sues in his individual capacity, the complaint may be amended so as to make the suit stand in his representative capacity, and vice versa. Lucas v. Pittman, 94 Ala. 616, 10 So. 603. In such case, there is no entire change of parties, but only of the character in which they sue.

"The purpose of the statute authorizing amendments by striking out or adding parties, plaintiff or defendant, is to cure defects arising from nonjoinder or misjoinder, without having to dismiss the case." Jones v. Engelhardt, 78 Ala 506; Leaird v. Moore, 27 Ala. 328. Unless there is a misjoinder or nonjoinder, there would scarcely be room for the operation of the statute. It was not intended to go to the extent of making a total change of parties, either of plaintiffs or defendants. Stodder v. Grant, 28 Ala. 416; Leaird v. Moore, supra. So, in a suit in the justice's court against Daniel McGill, president of the Davis Avenue Railroad Company, and on appeal a complaint was filed against the Davis Avenue Railroad Company, it was held that this was an entire change of the party defendant. Railroad Co. v. Mallon, 57...