Garner v. Garner

Supreme Court of Alabama

Garner v. Garner

107 Ala. 242

CourtSupreme Court of Alabama

DecidedNovember 15, 1894

StatusPublished

Cited by1 cases

This text of 107 Ala. 242 (Garner v. Garner) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Garner v. Garner, 107 Ala. 242 (Ala. 1894).

Pincite

Opinion

BRICKELL, O. J.

The complaint would have been more formal, if following the summons, in the marginal statement of the names of the parties, the plaintiff had boon described, as administrator of the estate of. James PI. Garner, deceased. The informality was cured by the distinct averment in the body of the complaint that the promissory note, the cause of action, was payable to James H. Garner, and when collected, would be assets [244]*244of his estate in the hands of the plaintiff. It has been held, that the words “executor,” or “administrator,” not preceded by the particle “ as, ” affixed to tfie name of a party plaintiff or defendant, in the marginal statement in a complaint of the names of the parties, is mere' descriptio personae, and will not support a judgment for or against such party in a representative capacity. But when the averments in the body of the complaint, disclose a cause of action accruing to or against such, party in a representative capacity only, these averments fix the character of the action and the relation of the party to it, whether he be plaintiff or defendant.— Watson v. Collins, 37 Ala. 587 ; Rhodes v. Walker, 44 Ala. 213 ; Graham v. Gunn, 45 Ala. 577. From the body of the complaint, it was plain that the plaintiff was suing on a cause of action accruing to him in his representative capacity— that no individual right was involved — that the contract was made with the intestate while in life, and the right to sue had devolved on the plaintiff by means of his relation as administrator.

The original judgment would have been more regular, if pursuing the complaint, it had been rendered in favor of the plaintiff as administrator. That it was not so rendered was a mere clerical omission, escaping the attention of the parties and the court, and an amendment, producing a correspondence between the complaint and judgment, it was the duty of the court to make on .the application of a proper party.

Affirmed.

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BRICKELL, O. J.

The complaint would have been more formal, if following the summons, in the marginal statement of the names of the parties, the plaintiff had boon described, as administrator of the estate of. James PI. Garner, deceased. The informality was cured by the distinct averment in the body of the complaint that the promissory note, the cause of action, was payable to James H. Garner, and when collected, would be assets [244]*244of his estate in the hands of the plaintiff. It has been held, that the words “executor,” or “administrator,” not preceded by the particle “ as, ” affixed to tfie name of a party plaintiff or defendant, in the marginal statement in a complaint of the names of the parties, is mere' descriptio personae, and will not support a judgment for or against such party in a representative capacity. But when the averments in the body of the complaint, disclose a cause of action accruing to or against such, party in a representative capacity only, these averments fix the character of the action and the relation of the party to it, whether he be plaintiff or defendant.— Watson v. Collins, 37 Ala. 587 ; Rhodes v. Walker, 44 Ala. 213 ; Graham v. Gunn, 45 Ala. 577. From the body of the complaint, it was plain that the plaintiff was suing on a cause of action accruing to him in his representative capacity— that no individual right was involved — that the contract was made with the intestate while in life, and the right to sue had devolved on the plaintiff by means of his relation as administrator.

The original judgment would have been more regular, if pursuing the complaint, it had been rendered in favor of the plaintiff as administrator. That it was not so rendered was a mere clerical omission, escaping the attention of the parties and the court, and an amendment, producing a correspondence between the complaint and judgment, it was the duty of the court to make on .the application of a proper party.

Affirmed.

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107 Ala. 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garner-v-garner-ala-1894.

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