South & North Alabama Railroad v. Small

70 Ala. 499

• Court: Supreme Court of Alabama
• Decided: December 15, 1881
• Status: Published

Opinion

BRICKELL, C. J.-

It is certainly true, that on appeal or oertiorevri from the judgment of a justice of the peace, in the appellate court, there can not be an entire change of parties. They must remain as they were in the inferior court, unless there he a necessity for a revivor, or a casé is made in which, under the statute of amendments, parties may be stricken out, or added.—1 Brick. Dig. 113, § 68. If the proceedings before the justice are, without objection, conducted in the name of a party suing, or being sued, by the initials, or by an abbreviation of the Christian name, or by the wrong Christian, name, the true name may be introduced into the complaint filed in the appellate court. This is not a change of parties, but the mere correction of a defect in the proceedings before the justice. The defect is also of that character which the statute requires should be disregarded, commanding that the trial shall he de novo.—Couch v. Atkinson, 32 Ala. 633.

There was evidence having a tendency to show that the hogs were killed by the train of appellant. The sufficiency of the evidence was for the jury; and of their province, the charge requested was a clear invasion. The court could not, without error, have given it.

Affirmed.