King v. Avery

37 Ala. 169

• Court: Supreme Court of Alabama
• Decided: January 15, 1861
• Status: Published

Opinion

STONE, J.

The 3d section of the act “amendatory of the proceedings in’'chancery,”"(Pamph. Acts of .1857-58, p. 230,) declares, “that amendments to bills and answers shall be allowed, at any time before final decree, to meet the justice of the case; and amendments to bills shall be allowed, by adding or striking out new parties complainant or defendant, and to meet 'any state of proof that shall authorize relief,”'&c. The terms of this statute are very -analogous to “several of 'the most important provisions of» the Code, in relation to amendments in suits at law. — Code, ^ 2403-4. We think the same liberal rules of intendment should be applied to the two statutes. Under this statute, we hold, that any change of parties, or of averment, which may become necessary to meet the justice of the ease, or to meet any state of the proof that will authorize relief must be allowed, “upon such terms as the chancellor shall deem just and equitable.” If the state of the proof authorizes relief, the chancellor has no discretion in the matter of allowing the amendment. In the terms upon which the amendment will be allowed, he has a discretion.

In the present case, the amendment should have been allowed, if the state of the proof authorized relief. The objection to its allowance is, that the proposed amendment made a new case — that when the amendment was allowed, the statute had barred the right therein asserted ; and that, as to this new matter, or new case, the rule is, that the statute continues to run, not only to the time of filing the original bill, but up to the time when the amendment was allowed.

[2.] We think the rule must be regarded as settled by the authorities, that “if, during the pendency of a suit, any new matter or claim, not before asserted, is set up and relied upon by the complainant, the defendant has aright to insist upon the benefit of the statute, until the time that the new claim is presented; because, until that time, there was no lis pendens as to that matter, between the parties.” On the contrary, if the amendment set up no new matter or claim, but simply vary the allegations as to a subject already in issue, then the statute will run only to the filing of the original bill. — Dudley v. Price, 10 B. Mon. 84-88 ; Story’s Equity Pl. § 904; Holmes v. Moreland, 1 McL. 1; S. C., 7 Pet. 171; Miller v. McIntyre, 6 Pet. 61 ; Woodwart v. Ware, 37 Maine, 563 ; Bradford v. Edwards, 32 Ala. 528.

We think the chancellor obtained a correct conclusion in this case. Although, in the suit by Mr. and Mrs. King, the right to recover depended on the title of Mrs. King-under her grandfather, Mr. Hill; still the suit, in its present form, must be regarded as the suit of Mr. King, the husband. The authorities so treat it, and go even so far as to hold, that a failure to recover in such suit would be no bar to a subsequent suit by Mrs. King. Further, if Mr. King bad died pending the suit, and Mrs. King had suffered the suit to abate, taking no steps after his death, a decree for costs could not have been rendered against her. — Sto. Eq. Pl. §§ 61, 361; Grant v. Van Schoonhaven, 9 Paige, 255 ; Hughes v. Evans, 1 Sim. & Stu. 185 ; Reeves v. Dudley, 2 Sim. & Stu. 464 ; Owden v. Campbell, 8 Sim. 551; Wake v. Packer, 2 Keene, 69 ; England v. Downs, 1 Beav. 96.

Although in a suit by Mrs. King while sole, as well as in the present suit, the right to recover depends mainly on her title; still the two cases are entirely different, in this : In a suit by her alone, the litigation:would be entirely hers, and the money hers, if she succeeded; in the present suit, the right to recover depends also on a new derivative title, viz., the marital rights of Mr. King, acquired by his marriage with the female complainant. If, on a proper issue, there was a failure to- prove the marriage, this suit must fail, although Mrs. King’s title may be perfect. If this bill succeed, the fruits of the recovery will vest in Mr. King. The suit by Mrs. Croxton -was in her own right. The present is Mr. King’s suit, in which Mrs. King incurs no costs or disabilities, and in which, if there be no change of parties, she can realize no benefit. — Dudley v. Price, supra ; Thrasher v. Ingram, 32 Ala. 645.

The decree of the chancellor is affirmed.