Robinson v. Darden

Supreme Court of Alabama

Robinson v. Darden

50 Ala. 71

CourtSupreme Court of Alabama

DecidedJune 15, 1873

StatusPublished

Cited by1 cases

This text of 50 Ala. 71 (Robinson v. Darden) 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

Robinson v. Darden, 50 Ala. 71 (Ala. 1873).

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Opinion

PETERS, C. J.

Very clearly, the amendment in this case should have been permitted. The right to amend the complaint is absolute, and not merely discretionary. The language of the statute is peremptory; and it should be allowed even after the evidence has been closed, and the argument concluded, and the jury have been instructed. Prater v. Miller, 25 Ala. 320. The power to amend should be very liberally exercised. Crimm's Adm'r v. Crawford, 29 Ala. 623. Here the parties remain the same, and the cause of action is the same ; but the first complaint failed to show a right of action in the plaintiff. This was merely a defective allegation of title in the plaintiff. Such defect is amendable, and should have been allowed. Rev. Code, § 2809.

The court below erred, therefore, in refusing to allow the amendment, as shown in the bill of exceptions. 1 Brick. Digest, p. 76, §§ 98 et seq.

The judgment of nonsuit is reversed and set aside, and the ' cause is remanded for a new trial.

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PETERS, C. J.

Very clearly, the amendment in this case should have been permitted. The right to amend the complaint is absolute, and not merely discretionary. The language of the statute is peremptory; and it should be allowed even after the evidence has been closed, and the argument concluded, and the jury have been instructed. Prater v. Miller, 25 Ala. 320. The power to amend should be very liberally exercised. Crimm's Adm'r v. Crawford, 29 Ala. 623. Here the parties remain the same, and the cause of action is the same ; but the first complaint failed to show a right of action in the plaintiff. This was merely a defective allegation of title in the plaintiff. Such defect is amendable, and should have been allowed. Rev. Code, § 2809.

The court below erred, therefore, in refusing to allow the amendment, as shown in the bill of exceptions. 1 Brick. Digest, p. 76, §§ 98 et seq.

The judgment of nonsuit is reversed and set aside, and the ' cause is remanded for a new trial.

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50 Ala. 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-darden-ala-1873.

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