Davis Avenue Railroad v. Mallon

57 Ala. 168

• Court: Supreme Court of Alabama
• Decided: December 15, 1876
• Status: Published

Opinion

STONE, J.

While our statute of amendments is exceedingly liberal, it has uniformly been held that it is not permissible to strike out a sole party, either plaintiff or -defendant, and insert another.—Leaird v. Moore, 27 Ala. 326; Friend v. Oliver, ib. 532; Crimm, v. Crawford, 29 Ala. 623.

And the same rule has been maintained steadily in cases of appeal from judgments of justices of the peace, although such causes are required to be “ tried according to equity and justice, without regard to any defect in the summons or ■other proceeding before the justice.” And when, in case of appeal or otherwise, the attempt is made to file a complaint in a name, or names, entirely different from those employed in the bringing of the suit, the proper remedy is a motion to reject such complaint on account of the . departure. Moffett v. Wooldridge, 3 Stew. 322; Elliott v. Smith, 1 Ala. 74; Taylor v. Acre, 8 Ala. 491; Mooney v. Ivey, ib. 810; Wilson v. Collins, 9 Ala. 127; Sexton v. Rone, 7 Ala, 829; Otis v. Thorn, 18 Ala. 395, 399.

The summons from the justice of the peace, which was the commencement of the present suit, was against “ Daniel McGill, President Davis Avenue Railroad.” The complaint filed in the Circuit Court was entitled “ Patrick Mallon, plaintiff v. Davis Avenue Railroad Company.” It requires no argument to show that this was an entire change of the party defendant, and the motion to reject the complaint ought to have been sustained. This case comes directly within the principle declared in Otis v. Thorn, supra.

Reversed and remanded.