Browder v. Gaston

30 Ala. 677

Opinion

STONE, J.

Some of tbe forms of pleading, in civil proceedings, given in tbe Code, contain no averment of property, or ownership, in the plaintiff. Tbe form for a complaint “on promissory note by payee against maker,” p. 551; tbe form “for the recovery of chattels in specie,” p. 552, and several others, are in this condition. In every such case, the form given in tbe Code is sufficient. — See Letondal v. Huguenin, 26 Ala. 552; Pickens and Wife v. Oliver, 29 Ala. 528. But, when tbe complaint describes a cause of action which is, prima facie, tbe property of tbe plaintiff, there must be, to make it good, an averment of property in tbe plaintiff, or something equivalent to it. If tbe demand be assignable, an averment that it has been assigned to plaintiff will be sufficient.

The complaint in this case describes a note made payable to Joseph A. Salsbury. This, without more, imports that Salsbury is tbe owner of tbe note. Tbe plaintiffs fail to show that they are tbe “party really interested,” and for this reason tbe complaint is bad. — Code, § 2129; see, also, form for complaint by transferree, onp. '552.

This defect is one of substance, and is not cured by sections 2402 and 2405 of tbe Code.

Tbe complaint should also have been signed by tbe plaintiff, or bis attorney. — Code, § 2234.

Tbe judgment of tbe circuit court is reversed.