Punch & Duggan v. Walke

34 Ala. 494

• Court: Supreme Court of Alabama
• Decided: June 15, 1859
• Status: Published

Opinion

STONE, J.

The exceptions to the action of the circuit court all relate to its refusal to permit certain amendments of the complaint. The complaint copied in the record contains two counts, the second of which is a literal copy of the one mentioned in the bill of exceptions as proposed and rejected. Under a severe criticism, we. might presume the amendment was rejected, because it added nothing to the sufficiency of the complaint already. on file. We suppose, however, that this is an error of the clerk in copying ; and that the said second count never was filed, but is in fact the proposed amendment. What we would decide in this connection, if it were necessary to a decision of this ease, we do not now announce.

Without adverting to any other defect in the amendment which was offered to be filed to the complaint in this case, it is evidently insufficient to justify a recovery against the separate estate of the wife, under section 1987 of the Code. It fails to aver that the articles purchased were such as the husband would be responsible for in an action at common law, or any other facts from which that inference can be drawn. Hence, if the amendment had been allowed, and a judgment had been rendered against both defendants, that judgment would have been reversed on error. — Durden and Wife v. McWilliams, 31 Ala. 438; Henry v. Hickman, 22 Ala. 685; Cunningham v. Fontaine, 25 Ala. 644; Gibson v. Marquis, 29 Ala. 668 ; Ravesies v. Stoddart and Wife, 32 Ala. 599.

The simple question, then, which this record presents,, is the refusal of the circuit court to allow an amendment, which, if allowed, would not have supported a verdict and judgment. This cannot be regarded as the amendment of an imperfection or defect. — Code, § 2403. If, however, it be an error, it is without injury to the plaintiffs. — Shep. Digest, 568, § 82.

Judgment of the circuit court affirmed.