Howton v. Jordan

46 So. 234, 154 Ala. 428, 1908 Ala. LEXIS 591

Opinion

ANDERSON, J.

Conceding, without deciding, that the various amendments to the bill of complaint were permissible, it was error to allow the same without notice to the respondents. The only amendments which are authorized under the rule without notice are those applied for at the hearing in term time. — Rule 40. Rule 44 applies to notice of the allowance of amendments, and not to the application for same. There is nothing in the record to indicate that any notice was given of the application to malee any of the amendments; nor that the amendments were made, unless the summons served on respondents’ solicitor on April 11, 1906, had that effect as to amendments allowed prior thereto. But we find an amendment made subsequent to that time, February 12, 1907, and no notice of the application for an allowance of same. The fact that a. decree pro confesso was entered did not dispense with notice of amendments subsequently made, and it was reversible error to render a decree on tbe amendmnt. — McClenny v. Ward, 80 Ala. 243; Holly v. Bass' Adm'r, 63 Ala. 387; Masterson v. Masterson, 32 Ala. 437.

Tbe decree of tbe city court is reversed, and the cause is remanded.

Reversed and remanded.

Ttson, C. J., and Dowdell and McClellan, JJ., concur.