Birmingham Railway, Light & Power Co. v. Cunningham

141 Ala. 470

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

McCLELLAN, O. J.

The judgment rendered in (diis court on June 28th, 1902, affirming the judgment of the city court in the case of Birmingham Railway & Electric Co. v. A. B. Jackson, 34 South. 994, had effect as of date of the submission of the cause here' which occurred during the lifetime of the appellee, said Jackson, though in fact rendered after his death; and upon the certification of said judgment of affirmance to the city court, it stood in that court as a judgment rendered in his lifetime, but of which execution had not been had before his death. Therefore, the appropriate proceeding in the city court was that resorted t and adopted as shown by the record before us, viz,., by srirc facias to revive said judgment in the name1 of the personal representative of the deceased plaintiff in judgment, against the defendants in judgment.

J t appears that after the appeal to this court and prior to the inslitution of the proceeding of revivor in the city court, the defendant corporation was consolidated with another corporation,-the Birmingham Railway, Light & 'Power Company, the consolidated company taking the name of the Birmingham Railway, Light & Power "Company. In our opinion, for all the purposes of this proceeding the only effect of this consolidation was to change the name of the defendant in judgment from Birmingham Railway & Electric Company, to Birmingham Railway, Light & Power Company, without change of entity or identity, so that the consolidated corporation in and by the new name is the proper party respondent to the petition for scire facias, along with the sureties on the appeal bond against whom also judgment was rendered in this court. — Code 1896, §§ 1202, 1204; Uirsehl, Combination, etc., Corporations, 184.

Affirmed.

Haralson, Dowdell and Denson, J. J., concurring.