Miller Grain & Commission Co. v. Lookout Refining Co.

Alabama Court of Appeals

Miller Grain & Commission Co. v. Lookout Refining Co.

73 So. 757, 15 Ala. App. 436, 1917 Ala. App. LEXIS 7

CourtAlabama Court of Appeals

DecidedJanuary 9, 1917

StatusPublished

Cited by1 cases

This text of 73 So. 757 (Miller Grain & Commission Co. v. Lookout Refining Co.) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller Grain & Commission Co. v. Lookout Refining Co., 73 So. 757, 15 Ala. App. 436, 1917 Ala. App. LEXIS 7 (Ala. Ct. App. 1917).

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Opinion

EVANS, J.

The several assignments of error relate to but a single question, to wit: Did the amendment of the complaint work a complete change of the party defendant ? The insistence of appellant in the affirmative is obviously without merit.

(1) The complaint as originally filed sued the “Miller Grain & Commission Company, a corporation, defendant.” By amend *437 ment the word “Incorporated,” was added just after the word “Company” as part of the defendant’s name. The amendment merely corrected an inaccuracy or misnomer.

(2) In Savannah, A. & M. Ry. v. Buford, 106 Ala. 303, 310, 17 South. 395, 397, Brickell, C. J., observed: “It seems to us it is quite an error to suppose that the mere change of the name of a party, natural or artificial, though such party may be a sole plaintiff or defendant, can be an entire change of parties; * * * ‘that there is a well-marked distinction between a misnomer which incorrectly names a corporation, but correctly describes it, and the statement in the pleading of an entirely different party.’ ”

See, also, Singer Mfg. Co. v. Greenleaf, 100 Ala. 272, 14 South. 109; King Land & Imp. Co. v. Bowen, 7 Ala. App. 462, 61 South. 22; Decatur Lt., P. & F. Co. v. Newsom, 179 Ala. 127, 59 South. 615.

Suppose the caption of the original complaint had left out the words “a corporation,” which were merely descriptio personae, and was silent as to whether the entity sued was a corporation or a partnership name; it would have been altogether proper to have amended by showing that the entity sued was a corpo ration. — Stowers Furniture Co. v. Brake, 158 Ala. 639, 48 South. 89.

We are not impressed that the contention of appellant is. meritorious, and the judgment below is accordingly affirmed.

Affirmed.

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EVANS, J.

The several assignments of error relate to but a single question, to wit: Did the amendment of the complaint work a complete change of the party defendant ? The insistence of appellant in the affirmative is obviously without merit.

(1) The complaint as originally filed sued the “Miller Grain & Commission Company, a corporation, defendant.” By amend *437 ment the word “Incorporated,” was added just after the word “Company” as part of the defendant’s name. The amendment merely corrected an inaccuracy or misnomer.

(2) In Savannah, A. & M. Ry. v. Buford, 106 Ala. 303, 310, 17 South. 395, 397, Brickell, C. J., observed: “It seems to us it is quite an error to suppose that the mere change of the name of a party, natural or artificial, though such party may be a sole plaintiff or defendant, can be an entire change of parties; * * * ‘that there is a well-marked distinction between a misnomer which incorrectly names a corporation, but correctly describes it, and the statement in the pleading of an entirely different party.’ ”

See, also, Singer Mfg. Co. v. Greenleaf, 100 Ala. 272, 14 South. 109; King Land & Imp. Co. v. Bowen, 7 Ala. App. 462, 61 South. 22; Decatur Lt., P. & F. Co. v. Newsom, 179 Ala. 127, 59 South. 615.

Suppose the caption of the original complaint had left out the words “a corporation,” which were merely descriptio personae, and was silent as to whether the entity sued was a corporation or a partnership name; it would have been altogether proper to have amended by showing that the entity sued was a corpo ration. — Stowers Furniture Co. v. Brake, 158 Ala. 639, 48 South. 89.

We are not impressed that the contention of appellant is. meritorious, and the judgment below is accordingly affirmed.

Affirmed.

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73 So. 757, 15 Ala. App. 436, 1917 Ala. App. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-grain-commission-co-v-lookout-refining-co-alactapp-1917.

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