North Italian Colonial Co. v. Janovich-Calafiore Co.

Supreme Court of Alabama

North Italian Colonial Co. v. Janovich-Calafiore Co.

52 So. 329, 166 Ala. 201, 1910 Ala. LEXIS 355

CourtSupreme Court of Alabama

DecidedApril 21, 1910

StatusPublished

Cited by3 cases

This text of 52 So. 329 (North Italian Colonial Co. v. Janovich-Calafiore Co.) 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

North Italian Colonial Co. v. Janovich-Calafiore Co., 52 So. 329, 166 Ala. 201, 1910 Ala. LEXIS 355 (Ala. 1910).

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Opinion

McCLEDLAN, J.

While appellee spread upon the. motion docket of this court, and had notice of the same served upon the adversary, a motion questioning the authority of counsel, who appear for appellant, to prosecute the appeal and to assign errors for appellant, and praying, therefore, for dismissal of the appeal, the records of this court do not show a submission, in any way, of the cause on the motion stated. The submission was on the merits only. We cannot, therefore, consider the matter raised by the motion.

By leave of the court below, an amended complaint was filed, which, appellant insists, introduced a new cause of action and substituted entirely new parties plaintiff. The objection was sought to be taken by demurrer to the amended complaint. Appellant mistook his remedy. It should have been by motion to strike._ [203]*203Moore v. First Nat. Bank, 139 Ala. 595, 607, 36 South. 777. There was, hence, no error in overruling the demurrer.

The propriety of the allowance of an amendment of the character appellant contends was allowed in this instance was considered in Ala. Const. Co. v. Watson, 158 Ala. 166, 46 South. 506.

Let the judgment be affirmed.

Affirmed.

Dowdell, O. J., and Mayfield and Sayre, JJ., concur.

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McCLEDLAN, J.

While appellee spread upon the. motion docket of this court, and had notice of the same served upon the adversary, a motion questioning the authority of counsel, who appear for appellant, to prosecute the appeal and to assign errors for appellant, and praying, therefore, for dismissal of the appeal, the records of this court do not show a submission, in any way, of the cause on the motion stated. The submission was on the merits only. We cannot, therefore, consider the matter raised by the motion.

By leave of the court below, an amended complaint was filed, which, appellant insists, introduced a new cause of action and substituted entirely new parties plaintiff. The objection was sought to be taken by demurrer to the amended complaint. Appellant mistook his remedy. It should have been by motion to strike._ [203]*203Moore v. First Nat. Bank, 139 Ala. 595, 607, 36 South. 777. There was, hence, no error in overruling the demurrer.

The propriety of the allowance of an amendment of the character appellant contends was allowed in this instance was considered in Ala. Const. Co. v. Watson, 158 Ala. 166, 46 South. 506.

Let the judgment be affirmed.

Affirmed.

Dowdell, O. J., and Mayfield and Sayre, JJ., concur.

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52 So. 329, 166 Ala. 201, 1910 Ala. LEXIS 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-italian-colonial-co-v-janovich-calafiore-co-ala-1910.

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