Beecher v. Henderson, 4 Ala. App. 543, tract against two or more defendants as 58 So. 805, 806.

partners, and during the progress of the trial the proof discloses that one of the defendants is not a partner, the complaint may be amended to meet the state of the

In an action against several defendants, where the complaint alleges a joint contract, and the proof shows that one defendant did not make the contract evidence, and to remedy the misjoinder. jointly with the others, it may be amended by striking him out as a defendant without working a discontinuance as to the others. Jones v. Engelhardt, 78 Ala. 505.

"Though, the suit may be against several defendants, and the complaint allege a joint contract; if, from the evidence, it appears that one of the defendants did not in fact make the contract jointly with the others; the complaint may be amended by striking out the name of the person so improperly done. In such case, the amendment is regarded as a correction of a misdescription of the cause of action. Steed v. McIntyre, 68 Ala. 407. In Jones v. Nelson, 51 Ala. 471, which was a suit on the note, a similar amendment was made, and it was insisted that the action was discontinued as to the other defendants. It is said: 'Nor did the court err in permitting the plaintiff to amend the complaint, by striking out the name of the defendant Rittenhouse Moore

* He was not a maker of the note, and was therefore improperly joined as a defendant. The statute authorizes the striking out or adding parties, plaintiff or defendant; and the purpose was to cure defects of misjoinder of parties, plaintiff or defendant, without turning the case out of court.' The amendment, striking out the name of the defendant Wright, did not, under the circumstances, operate a discontinuance of the action as to the appellant. If the cause of action was separate and several in fact, the amendment was properly allowed. If it was joint, the remaining defendant could have protected himself against a recovery by a proper charge." Jones v. Engelhardt, 78 Ala. 505, 507.

In such case, an amendment striking out the party shown not to be a partner, and correcting the description of the partnership, does not work a discontinuance of the entire action. Jones v. Englehardt, 78 Ala. 505." Englehardt v. Clanton, 83 Ala. 336, 3 So. 680, 681.

Striking Out Nominal Plaintiff.-In an action on a "writing obligatory," a demurrer having been sustained to the complaint, because it showed on its face that the beneficial plaintiff, for whose use the action was brought, ought to have been the sole nominal plaintiff, the complaint may be amended (Code, § 2403) by striking out the nominal plaintiff. Dwyer v. Kennemore, 31 Ala. 404.

When an action under the Code (§ 2129), founded on a "writing obligatory" for the payment of money, is brought in the name of one person, for the use of another, a demurrer lies to the complaint, because it shows on its face that the action ought to have been brought in the name of the beneficial plaintiff. Dwyer v. Kennemore, 31 Ala. 404.

An action founded on a writing obligatory was brought by A., for the use of B., against C. C. filed a demurrer, on the ground that the Code required that such action should be brought in the name of the "party really interested," which appeared to be 'B. alone, and the demurrer was sustained; but the court allowed an amendment to be made by striking out the name of A. and leaving B. sole plaintiff. Dwyer v. Kennemore, 31 Ala. 404.

Striking Out Agent's Name.—Where, in an action on a contract against the other party thereto and the agent through whom the contract was made, the evidence showed no individual liability of the agent, it was proper to permit plaintiff to amend by striking out the agent's name as party defendant. Eagle Iron Co. v. Baugh, 41 So. 663, 147 Ala. 613. Striking Out Names of Individual Partners.-Where, in an action against several persons, they are described in the complaint, after giving their individual "When suit is brought on a joint con- names, as "partners doing business under

Proper Description of Partnership.Where suit is brought on a joint contract against a partnership, and the proof discloses that one of the defendants is not a partner, the complaint may be amended in accordance with the true description of the partnership. Englehardt v. Clanton, 83 Ala. 336, 3 So. 680.

as a joint debtor does not change the fact that he is merely an indorser. As it was improper to join the maker in a suit against the indorser, there was no error in allowing the complaint to be amended by striking out the maker." Scarbrough v. City Nat. Bank, 157 Ala. 577, 48 So. 62, 63.

the name of" (a partnership name), the Ala. 728, 731. Seeking to hold Scarbrough action is against such persons individually, and against the partnership; and in the trial of the cause the names of the partners may be stricken out by amendment, leaving the action to proceed against the partnership by its common firm name (Code, § 3331), and such amendment does not operate as a discontinuance of the cause. Vinegar Bend Lumber Co. v. Hamilton Brown Shoe Co., 29 So. 857, 129 Ala. 271.

Names of Contractors. Where subcontractors bring an action for work on a railroad against the contractors and the railroad company, it is not error to permit plaintiffs, at the close of the evidence, to amend the complaint by striking out the names of the contractors, and proceed against the company only. Huntsville, B. L. & M. S. Ry. Co. v. Corpening, 97 Ala. 681, 12 So. 295.

"There was no error in the matter of the amendments to the complaint, which were allowed by the court, without objection or exception on the part of the defendant. One of these amendments consisted in allowing the complaint to be amended by striking out three of the twelve parties suing as plaintiffs, including said P. L. Rowland, and prosecuting the suit to judgment in the name of the remaining nine. They were coheirs and cotenants in the lands of their father, and there are authorities which hold, that for Action by Heirs at Law. In an action an injury done to the common inheritance by heirs at law as co-tenants to recover in land, the heirs must all sue. Thompfor injuries to property of decedent, the son v. Mawhinney, 17 Ala. 362, 363; complaint may be amended by striking| Pruitt v. Ellington, 59 Ala. 454; Austin out the names of part of the original v. Hall, 13 Johns, 286; Chit. Pl. 14, 74, plaintiffs. Lowery v. Rowland, 104 Ala. 75; Freem. Coten. § 347. But, when for 420, 16 So. 88. any reason, as there may be, there is no "The next assignment of error in- joint interest, and the cotenants are not sisted on is that the court erred in allow-jointly interested in the damages, the ing the name of Gus Woodruff to be remedy is severable. stricken out as a party defendant to the complaint. Section 3331 of the Code of 1896 (§ 5367 of the Code of 1907). Our courts have held that one of the objects of this statute was to permit amendments striking out improper parties to the suit, without working a discontinuance of the action. Vinegar Bend Lumber Co. v. Chicago Title, etc., Co., 131 Ala. 411, 30 So. 776; Evans Marble Co. v. McDonald & Co., 142 Ala. 130, 37 So. 830; Masterson v. Gibson, 56 Ala. 56, 58; Jones v. Nelson, 51 Ala. 471; Mock v. Walker, 42 Ala. 668, 670; Leaird v. Moore, 27 Ala. 326, 328. While the payee of a negotiable promis- Name of Deceased Party. The court sory note may sue both the maker and may allow an amendment to a complaint the indorser simultaneously in separate by striking out the name of a plaintiff actions, yet, without statutory provision who was dead at the commencement of to that effect, there is no authority for the suit. Jemison v. Smith, 37 Ala. 185. suing them jointly. 8 Cyc. 292; 3 Ran

In such cases, where less than the whole number sue, the recovery is graduated to the interest of those suing. Pruitt v. Ellington, 59 Ala. 454; Lothrop v. Arnold, 25 Me. 136; Chit. Pl. 75, and note. Here, nine of the twelve heirs are the plaintiffs; three originally joined having been stricken out of the complaint, without objection on the part of the defendant. The recovery should have been, not for the whole damages suffered to the inheritance, but for their proportionate share thereof." Lowery v. Rowland, 104 Ala. 420, 16 So. 88, 90.

dolph on Commercial Paper, § 1669. In § 38 (2) Entire Change of Parties.

Striking Out Name of Original Party. -Where an action is commenced by one party, and by amendment other parties

the case of Abercrombie v. Knox, 3 Ala. 728, referred to by counsel for appellant, the reference is to 'separate suits' against all the parties. Abercrombie v. Knox, 3 are added, the name of the original party

can not afterwards be struck out by a subsequent amendment. Tarver v. Smith, 38 Ala. 135.

Application of Rule to Proceedings before Justice of the Peace. The rule against amendments which affect a change of the sole party plaintiff applies to amendments before a justice of the peace. Hallmark v. Hooper, 119 Ala. 78, 24 So. 563.

Change of Parties after Close of Testimony. Where an amendment is made, adding a new party defendant, plaintiff can not again amend the complaint, after the testimony is closed, by striking out the original defendant as a party, thus working an entire change of parties. Rarden Mercantile Co. v. Whiteside, 39 So. 576, 145 Ala. 617.

"It has been many times ruled by this court that the statute of amendments (§ 3331 of the Code) does not authorize an amendment as to parties, either plaintiff or defendant, that works an entire change of parties. Davis Ave. R. Co. v. Mallon, 57 Ala. 168, and authorities there cited; Springfield Fire, etc., Ins. Co. v. De Jarnett, 111 Ala. 248, 19 So. 995; Vinegar Bend Lumber Co. v. Chicago Title, etc., Co., 131 Ala. 411, 30 So. 776; Steiner Bros. . Stewart, 134 Ala. 568, 33 So. 343." Rarden Mercantile Co. v. Whiteside, 145 Ala. 617, 39 So. 576.

made, at another term, to amend the complaint, so as to leave the husband the sole plaintiff on the record, suing in the capacity of trustee for his wife. Held, that the motion was properly refused. Pickens v. Oliver, 32 Ala. 626.

§ 38 (3) Effect of Striking Out Parties,

and Proceedings in Cause Thereafter. "This suit was originally brought in the name of Margaret C. Pickens, as the sole plaintiff. Her husband was subsequently, by amendment, made a co-plaintiff; with her. A motion was afterwards made, at another term, to amend the complaint, so as to leave the husband the sole plaintiff upon the record, suing in the capacity of trustee for his wife. This motion was properly overruled. The effect of allowing an amendment, by which the name of the husband was added, and then allowing an amendment by which the name of the wife was stricken out, would have been, in an indirect manner, to strike out the name of the sole plaintiff, and insert the name of a new plaintiff. This, it was decided in Leaird v. Moore, 27 Ala. 326, could not be done directly; and the same rule must prevail, when the attempt is made to effect the same object by two distinct amendments at different terms of the court. Friend v. Oliver, 27 Ala. 532." Pickens v. Oliver, 32 Ala. 626.

Substitution Working Discontinuance Failure of Original Complainant to of Cause.-While our statute of amendShow Right to Recover.-Where one of ments is exceedingly liberal in its terms, several complainants fails to show a right it has never been held to authorize the to recover, and the other complainants striking out of a sole party plaintiff and were brought in by amended bill, the va- the substitution of another; and, upon this riance can not be cured by amendment, being done, such substitution will work since to strike out complainant's name a discontinuance of the cause. Vinegar would result in an entire change of par- Bend Lumber Co. v. Chicago Title & ties. Reynolds v. Caldwell, 80 Ala. 232. Trust Co., 30 So. 776, 131 Ala. 411. Second Amendment Striking Out Name Substitution of Agent for Principal.or Original Party.-The name of an ad- An amendment of a cause entitled in the ministrator, in whose name as sole plain-name of "W. H., Agent for N. H.," by tiff in a bill is improperly filed, can not striking all but the name of N. H. as plainbe stricken out by a second amendment after the heirs have been brought in by amendment, as that would work an entire change of parties. McKay v. Broad, 70 Ala. 377.

tiff, effects an entire change in the party plaintiff; since the words "Agent for N. H." are mere personal description. Hallmark v. Hopper, 24 So. 563, 119 Ala. 78.

"There can be no question but that a Substitution of Husband for Wife.-A suit brought in the name of 'A. B., Agent suit was brought originally in the name for C. D.,' is the suit of A. B., and not of , of a wife as sole plaintiff. Her husband C. D., and that the words 'Agent for C. was subsequently, by amendment, made D.' are merely personally descriptive of a co-plaintiff. A motion was afterwards¦ A. B., and superfluous. It is equally clear

that an amendment by which such action correction of a misdescription of the cause would be made to stand in the name of C. of action.' Jones v. Engelhardt, 78 Ala. D. as plaintiff would work an entire 505. Under the aspect of the evidence change of party plaintiff, and is therefore above mentioned, there was a fatal varinot allowable. And this rule against ance between the allegations and the amendments operating a change of the proof, which was curable by an amendsole party plaintiff applies to actions be- ment of the complaint striking out one of gun before justices of the peace, and the parties defendant; and the allowance brought by appeal into circuit courts. Da- of such an amendment did not constitute vis Ave. R. Co. v. Mallon, 57 Ala. 168. a ground for discontinuing the action on Judgment being rendered in such case in the motion of the remaining defendant. favor of A. B., agent for C. D., the fact Code, § 5367; Jones v. Engelhardt, 78 that defendants execute an appeal bond | Ala. 505; Cobb v. Keith, 110 Ala. 614, 18 reciting a judgment in favor of C. D., does So. 325; Jackson v. Bush, 82 Ala. 396, 1 not make it a judgment in favor of C. D., nor make C. D. the party plaintiff in the circuit court, nor justify an amendment of the complaint filed in that court in the name of A. B., agent for C. D., that is, in the name of A. B.,-substituting C. D. for A. G. as the sole party plaintiff. Sossman 7. Price, 57 Ala. 204." Hallmark v. Hopper, 119 Ala. 78, 24 So. 563, 564.

So. 175." Hughes v. Albertville Mercantile Co., 3 Ala. App. 462, 57 So. 98.

Under Code 1907, § 5367, requiring the court to permit amendments to the complaint by striking out or adding other parties, the striking of an improper party does not work a discontinuance whether the impropriety is brought to the court's attention by demurrer or appears from the evidence. Shriner v. Craft, 51 So. 884, 166 Ala. 146.

Does Not Affect Discontinuance. Where the complaint alleged a joint contract by defendants, and the evidence Verdict against Remaining Party. showed that a defendant did not make a Code 1896, § 3331, authorizing the amendcontract jointly with his codefendant, but ment of a complaint by striking out parties that he had a separate transaction with plaintiff, where all the plaintiffs who origplaintiff, the complaint could be amended inally sued for damages to their lot owing under Code 1907, § 5367, by striking out to the construction of a railroad embankthe name of defendant, and the allowancement in a street on which the lot abutted of the amendment was not a ground for a discontinuance of the action on the motion of said co-defendant. Hughes v. Albertville Mercantile Co., 3 Ala. App. 462, 57 So. 98.

owned a joint interest in the property, and some of the plaintiffs were stricken from the complaint, it did not entitle defendant to a verdict as against the remaining plaintiffs. Birmingham Ry. Light & Power Co. v. Oden, 41 So. 129, 146 Ala.

495.

Relates to Commencement of Action.— Where a complaint was amended by striking from it all of the defendants except one, the amendment related back to the commencement of the suit; and the original summons and complaint were to be read as if there had been but one 'defend

ant.

"The complaint counts upon a joint cause of action against all of the defendants named in it. On the trial there was evidence tending to show that the account sued on was not jointly made by the two defendants, but whatever liability the defendant Hughes (the appellant here) had incurred in reference to that account was the result of separate dealings or transactions between him and the plaintiff in regard to it. "Though the suit may be against several defendants, and the com- Judgment against One Defendant. plaint allege a joint contract, if, from the Where the evidence in trover against sevevidence, it appears that one of the defend- eral defendants makes out a case against ants did not in fact make the contract one alone, it is proper to allow an amendjointly with the others, the complaint may ment to the complaint by striking out the be amended by striking out the name of other defendants, and to permit judgment the person so improperly joined. In such against the one defendant. Roman v. Drecase, the amendment is regarded as aher, 55 So. 1015, 1 Ala. App. 429.

Goss v. Aug. Weiman & Co., 5 Ala. App. 404, 59 So. 364.

Wood v. Co

§ 41. Description of Parties in General.
Firm Name. The complaint is not de-
murrable because of not designating the
defendant, "Smiley, Son & Co.," as a cor-
poration or partnership; the name fairly
or the other, action
importing the one
against persons in the common name un-
der which they transact business as part-

2506, and it not being necessary in suing
a corporation by its corporate name to
allege corporate existence. Smiley, Son
& Co. v. Keith, 3 Ala. App. 354, 57 So. 127.

"Our decisions are clear to the point, be sued in his true name. that in the action of trover, as in other ac- man, 56 Ala. 283. tions ex delicto, a judgment may be rendered against one of the defendants alone, and when the evidence makes out a case against only one, it is proper, under our statutes of amendment, to allow the complaint to be amended by striking out the other parties, and permit judgment against the one. Shrickland v. Wedgeworth, 154 Ala. 654, 45 So. 653; Wright v. Sample, 162 Ala. 222, 50 So. 268; Northern, etc., R.ners being authorized by Code 1907, § Co. v. Mansell, 138 Ala. 548, 36 So. 459; Southern R. Co. v. Arnold, 162 Ala. 570, 50 So. 293; Witcher v. Brewer, 49 Ala. 119, 122; 21 Ency. Pl. & Pr. p. 1054, subd. 5, also page 1124, subd. 3." Roman "Smiley, Son & Co.' were named as v. Dreher, 1 Ala. App. 429, 55 So. 1015. the parties defendant in the complaint, In an action against two or more, on a and appellants demurred to the complaint on the ground that it was not stated and joint cause of action, a recovery can not did not sufficiently appear whether the debe had on proof of a separate contract made by each; but, in an action against fendant is a corporation, partnership, or two, if the complaint contains only the individual. Appellants insist that the failcommon counts, and the evidence shows ure of the complaint to designate the defendant 'Smiley, Son & Co.' either as a a separate contract or liability on the part corporation or partnership renders it of one only, the name of the other may be struck out by amendment (Code, fatally defective, and that the court was 3156), or a discontinuance entered as to in error in overruling the demurrer. The him, without affecting the right to judg-suit is against the common name, “Smiley, ment against the first. Jones v. Engel- Son & Co.," which fairly imports a part

hardt, 78 Ala. 505.

nership (Birmingham Loan, etc., Co. v. First Nat. Bank, 100 Ala. 249, 13 So. 945),

IV. DESIGNATION AND DESCRIP- and § 2506 of the Code of 1907 authorizes

TION.

§ 39. Names of Individuals in General. Parties must be designated by name, and not by a mere description of the person, in the process and judgment. The use of the words "and wife" following the name of the defendant in the summons issued by the justice, and in the marginal

statement of the judgment, does not make the wife a party. Sossman v. Price, 57 Ala. 204.

Mistake in Middle Name.-A mistake

in the middle name, or its entire omission,
being regarded as immaterial, will not
support a plea in abatement for misnomer.
Rooks v. State, 83 Ala. 79, 3 So. 720.
§ 40. Wrong or Assumed Names.

a suit to be brought against a partnership in its common name. If the name nership or an incorporated company, no can be said to fairly import either a partincapacity to be sued appears on the face of the complaint; for, if a partnership or common name, § 2506 of the Code authorizes suit against it as such, and, if a corporation, it is suable by its corporate

name without alleging corporate existence, and is not subject to demurrer founded on such objection. The demurrers to the complaint were not well taken.

Seymour v. Thomas Harrow Co., 81 Ala. 250, 1 So. 45; 10 Cyc. 1347, 1348." Smiley, Son & Co. v. Keith, 3 Ala. App. 354, 57 So. 127, 128.

§ 42. Parties in Particular Capacity.

Mistake in First Name.- "Joshua P. Trustee. The word "trustee," followComan" executed a bond, signing it "J. P. ing plaintiff's name in the complaint, is Coman," and by mistake the name was mere descriptio personæ, unless the comwritten in the body of the bond “James plant shows that he sues in that capacity. P. Coman." Held, that the obligor may | Buckley v. Wilson, 56 Ala. 393.