Steed v. McIntyre

68 Ala. 407

• Court: Supreme Court of Alabama
• Decided: December 15, 1880
• Status: Published

Opinion

BRICKELL C. J.

The single limitation on the right to amend a complaint in an action at law, is, that there can not be,an entire change of parties, plaintiffs or defendants, or the introduction of an entirely new cause of .action. The want of proper parties, plaintiff or defendant, or the misjoin-der of either plaintiffs or defendants, may be cured by amendment. Any and all misdescriptions of the contract may also be cured by an amendment at any time, while the cause is in progress.—Code of 1876, § 3156. Ths original complaint was founded on a contract averred to have been made by the defendants, Steed and Seay. The amendment, averring that the contract was made by the defendants jointly with Crandall and MeCollough, merely cured its misdescription in the original complaint, and was properly allowed.—I Brick. Dig. 76, § 98; Long v. Patterson, 51 Ala, 414.

At common law, if in actions ex contractu it appeared at any stage of the cause, that there was a non-joinder of parties plaintiff, the objection could be taken, and was fatal. As to defendants the rule was different — the omission of a joint contractor was pleadable only in abatement.—Chit. Pl. (16 Am. Ed.), 53; 1 Brick. Dig. 6, § 92. In Jones v. Pitcher, 3 Stew. & Port. 159, it was said : “ This rule of practice is evidently most salutary; it avoids the danger of defeat in many actions for the same cause, and for the want of information very often possessed by the defendants alone. By the reasonable requisition that, if they will except to the non-joinder of others, as defendants, they shall do so by plea in abatement, thereby disclosing their knowledge of the persons jointly liable with them; the plaintiff need be exposed to but one defeat, and more summary justice can be done.”. If, however, on the face of the pleading of the plaintiff it appeared that the joint contractors omitted were in life, the defendant could, at common law, avail himself of the objection by demurrer, motion in arrest of judgment, or on error.—1 Chit. Pl. 54. It does not appear on the face of the amended complaint, that the joint contractors omitted were in life, though the fact may have been shown in evidence. The fact resting in extrinsic evidence, a plea in abatement was the only appropriate mode of taking advantage of the omission. But it would not be consistent with the spirit or policy of our statutes framed with the view of conferring on a plaintiff the right to maintain suits at law against-any or all who may be liable to him on a contract, joint or several, now to entertain the objection, if made in any form.—McKee v. Griffin, 60 Ala. 427.

Affirmed.