Stodder v. Grant & Nickels

28 Ala. 416

• Court: Supreme Court of Alabama
• Decided: January 15, 1856
• Status: Published

Opinion

CHILTON, C. J.

1. We cannot regard the letters found in the record as any part of it, as they are not made a part of the bill of exceptions by any appropriate reference to them. It is needless, therefore, to discuss the question of lien, since the charges involving it are clearly abstract; and the decision of the court, sustaining a demurrer to the second plea, has not been assigned for error.

2. The last charge should have been given; for, assuming the facts to be as therein stated, the legal title to the tobacco vested in Hutchinson, the assignee of the plaintiffs, and the subsequent conversion would give him, and, not Giant' & Nickels, a right of action. In such case as this, the action must be brought in the name of the person having the legal title. Code, § 2129. Section 2130 does hot cure the' defect; for, here, the action is not brought in the name of the party having the legal title, in the aspect of the facts presented by the charge: and hence Hutchinson, for whose use the suit is brought, is not the real party, or, in the language of this record, “ the sole party on the record.” He, then, can only be considered a party to. receive such recovery as the plaintiffs, G-rant & Nickels, can obtain; and having, in this view, no right, they can recover'nothing.

To strike out the names of the present plaintiffs, and to insert that of Hutchinson, would not be “ to add new parties plaintiffs,” as provided by section 2403, but to strike out the only plaintiffs on the record, leaving none to add to, and thus discharging the whole action. When .all the plaintiffs are stricken out, the case is at an end. We will not now undertake to define the exact limit of our present statute of amendments; but we think it quite clear, that it was not intended to go to the extent of making a total change of parties, either plaintiffs or defendants. The phraseology employed does not admit of such extraordinary latitude.- Such, too, has been our previous decision upon the point.- — Leaird v. Moore, 27 Ala. Rep. 326.

As, therefore, the court below has no power, under the statute, to make Hutchinson plaintiff instead of Grant & Nickels, we cannot consider the record as amended in this court. The result is, that the judgment must be reversed, and the cause remanded.