Longmire v. Pilkington

37 Ala. 296

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

Opinion

STONE, J.

The. Code (§ 2036) declares, that “guardians may sue in their own names, for the use of the ward', in all cases where tile ward has an interest, and the judgment enures to ..his .benefit.” The amended complaint in. the present case discloses an interest in the ward; _ and if its averments be true, the judgment will enure to her benefit. The case, then, as made by th^ amendment,, is precisely within the letter of the section of the Code above copied, if that section, be not qualified by some other provisions of the Code. It is contended, that section,; 2132 qualifies section 2036, We think we give operation to the latter section, (2132,) when we declare that it would evidently govern.suits by infants who have no guardian. They “must sue by their-next friend.” Possibly there are other cases to which section,-2132 would apply.

We hold,, then, that; in suits like the present, the guardian “may sue in his- own name, for the use of the ward.

Section 2130 of the Code relates to suits “brought in the name of the person having the legal title, for the use of another.” A guardian, as such, has not the legal title of iiis ward’s estate ; and, hence, that section can exert no influence on suits like the present. —Sutherland v. Goff, 5 Por. 508 ; Hooks v. Smith, 18 Ala. 341.

[2.] If the amendment was properly allowed, wemeed not inquire whether the record sufficiently raises the guesvfcion of its allowance. — See Bryan v. Wilson, 27 Ala. 208 ; Felkel v. Hicks, 32 Ala. 25. The alteration in this case was not an entire change, or substitution, of one party plaintiff for another. Such change, under our decisions, would not be allowed. — Leaird v. Moore, 27 Ala. 326 ; Friend v. Oliver, ib. 532; Dwyer v. Kinnemore, 31 Ala. 404; Pickens v. Oliver, 32 Ala. 626. The amendment simply changed the character in which the plaintiff sued, by showing that he declared, not ianhisiown right, but in that of another, upon whose title the statute permits him to recover. In Crimm v. Crawford, ((29 Ala. 626,) we said, “To amend the complaint, so as to show the capacity in which the , plaintiff sues, produces no inadmissible departure from the summons; for, notwithstanding the summons is,! under ¿the decisions of this court, deemed as one in favor of the plaintiff as an individual, yet it is permissible for the plaintiff, upon general process, to declare as an administrator.” — See, also, Agee v. Williams, 30 Ala. 636. The principle settled in Crimm v. Crawford, supra, is well sustained by authorities, many >-of which are therein cited. We cannot distinguish between the right to amend in that case, and in-this; and, hence, we hold, that the amendment was properly allowed in the present case.

Judgment affirmed.