40 So. 971 | Ala. | 1906
The complaint as originally framed Avas composed of six counts. The minute entry shows the trial of the case Avas begun on the 27th day of January, 1904, and continued until the 30th day of January, on Avhich latter date the jury rendered a verdict for the plaintiff. It appeal's on the 27th of January the plaintiff amended the complaint by striking out the third, fourth, fifth, and sixth counts, and by adding three counts, designated as B, O, and I), respectively. There appears in. the record an instrument which purports to be an amend
It is now insisted by the. appellant, that the amendment cannot be regarded, for that it does not appear that the amendment was made Avith leave-of the court. We think the insistence untenable. While it is the proper practice that the minute entry proper should show that amendments are alloAved, yet, if the amendment is sIioaati by the record, it cannot be insisted for the first time on appeal that they are not properly in the record, especially in the face of the certificate of the clerk, attached to the record containing the amendment, to the effect that the record contains “a true and correct copy of the records and proceedings in the cause.” — Sou. Ry. Co. v. Bunt, 131 Ala. 591, 32 South. 507. Therefore the only counts in the complaint for consideration are B, C, and D. Demurrers to each of these counts were overruled. Count C is framed with respect of subdivision 3 of section 1749 of the code of 1896. To make a good count under this subdivision it is necessary that the name of the employe whose negligence, is counted on should be averred, or his name should he averred to he unknoAAm to the plaintiff when that is a fact. In this respect count 0 is defective. The demurrer pointed out the defect, and it should have been sustained. — Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 South. 349; Woodward Iron Co. v. Herndon, 114 Ala. 191, 21 South. 430; Cen. of Ga. Ry. v. Lamb, 124 Ala. 172, on page 175, 26 South. 969,
We have found there was error in overruling lire demurrers to counts C and D. If the bill of exceptions were stricken, as appellee asks us to do, this would leave before us the pleadings alone, and the error in overruling the demurrer to counts C and D would work a reversal of the judgment. If the bill of exceptions is before us and is properly a part of the record, we could not affirm therefrom that.the verdict was based on count B. On the contrary, under the evidence, it can only be referred to counts O and D. It may he that count B is insufficient in not directly alleging, and in leaving only an inference, that the defendant was in. possession or had under its
For the errors pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.