Cobb & Woodham v. W. E. Duggan Lumber Co.

Alabama Court of Appeals

Cobb & Woodham v. W. E. Duggan Lumber Co.

142 So. 585, 25 Ala. App. 130, 1932 Ala. App. LEXIS 121

CourtAlabama Court of Appeals

DecidedMarch 29, 1932

Docket4 Div. 831.

StatusPublished

Cited by1 cases

This text of 142 So. 585 (Cobb & Woodham v. W. E. Duggan Lumber Co.) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cobb & Woodham v. W. E. Duggan Lumber Co., 142 So. 585, 25 Ala. App. 130, 1932 Ala. App. LEXIS 121 (Ala. Ct. App. 1932).

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Opinion

SAMFORD, J.

The appeal in this case is on the record, and presents but one major question for decision. The suit was brought by W. E. D-uggan Lumber Company against these defendants both as a partnership and as individuals. There was no appearance by defendant, and judgment was rendered by default.

It is here insisted that the complaint fails to show on its face a legal plaintiff with capacity to maintain the suit, and that therefore the judgment must be reversed and the cause dismissed.

After judgment has been rendered by default and an appeal is taken to this court, the complaint must be allowed every legitimate intendment or inference that can be brought to bear upon the allegations made. Contorno v. Ensley Lumber Co., 211 Ala. 211, 100 So. 127. And if the complaint contains a substantial cause of action no judgment rendered thereon can be annulled, arrested, or set aside for any matter not previously ob *131 jected to. Hall et al. v. First Bank of Cross-ville, 196 Ala. 627, 72 So. 171.

The record in this ease shows the plaintiff to be “W. E. Duggan Lumber Company.” The word “Corp.” had it been added in the complaint, would not have become a part of plaintiff’s name, and its omission does not take away the fact of the legal entity of the plaintiff. The contention of the appellant here is the same as that made by appellee in the case of Southern Life Ins. Co. v. Roberts, 60 Ala. 431. In that case the court held that: “In an action by a foreign corporation, if the complaint does not aver the plaintiff’s corporate character, the cause should not be struck from the docket on that account, but an amendment should be allowed to supply the defect.” To the same effect is the holding in Rosenberg v. Claflin Co., 95 Ala. 249, 10 So. 521; Alabama Conference v. Price, 42 Ala. 47; Lewis Lumber Co. v. Camody, 137 Ala. 578, 35 So, 126. So we hold in this case. The plaintiff sued by its correct name. It failed to include in the complaint words of description. This was an amendable defect, and, not being raised before judgment, cannot now be raised.

We find no error in the record, and the judgment is affirmed.

Affirmed.

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SAMFORD, J.

The appeal in this case is on the record, and presents but one major question for decision. The suit was brought by W. E. D-uggan Lumber Company against these defendants both as a partnership and as individuals. There was no appearance by defendant, and judgment was rendered by default.

It is here insisted that the complaint fails to show on its face a legal plaintiff with capacity to maintain the suit, and that therefore the judgment must be reversed and the cause dismissed.

After judgment has been rendered by default and an appeal is taken to this court, the complaint must be allowed every legitimate intendment or inference that can be brought to bear upon the allegations made. Contorno v. Ensley Lumber Co., 211 Ala. 211, 100 So. 127. And if the complaint contains a substantial cause of action no judgment rendered thereon can be annulled, arrested, or set aside for any matter not previously ob *131 jected to. Hall et al. v. First Bank of Cross-ville, 196 Ala. 627, 72 So. 171.

The record in this ease shows the plaintiff to be “W. E. Duggan Lumber Company.” The word “Corp.” had it been added in the complaint, would not have become a part of plaintiff’s name, and its omission does not take away the fact of the legal entity of the plaintiff. The contention of the appellant here is the same as that made by appellee in the case of Southern Life Ins. Co. v. Roberts, 60 Ala. 431. In that case the court held that: “In an action by a foreign corporation, if the complaint does not aver the plaintiff’s corporate character, the cause should not be struck from the docket on that account, but an amendment should be allowed to supply the defect.” To the same effect is the holding in Rosenberg v. Claflin Co., 95 Ala. 249, 10 So. 521; Alabama Conference v. Price, 42 Ala. 47; Lewis Lumber Co. v. Camody, 137 Ala. 578, 35 So, 126. So we hold in this case. The plaintiff sued by its correct name. It failed to include in the complaint words of description. This was an amendable defect, and, not being raised before judgment, cannot now be raised.

We find no error in the record, and the judgment is affirmed.

Affirmed.

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142 So. 585, 25 Ala. App. 130, 1932 Ala. App. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cobb-woodham-v-w-e-duggan-lumber-co-alactapp-1932.

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