44 So. 592 | Ala. | 1907
Lead Opinion
The bill in this cause, as originally filed, averred that WóolfoTk. as president of the debtor corporation, Avithout- authority, agreed with the share
Upon a remandment of the cause the bill was amended by omitting the averment that Woolfolk’s acts were unauthorized, and averring in lieu thereof that the manage
Upon the cause being again remanded, the appellants demurred to the bill as amended; and from the decree overruling the demurrer this appeal is prosecuted.
One of the points raised by the demurrer, insisted on by appellants’ counsel, is that the amendment was a departure from the original bill, introducing a new cause of action, and therefore barred by the statute of limitations when made. “The statute of amendments to bills is broad and liberal, extending to striking out or adding new parties, or to meet any state of evidence which will authorize relief. Before final decree, the amendment of the bill is a matter of right. The limitations upon its exercise are that it shall not operate an entire change of parties, nor make a new case, nor work a radical departure from the cause of action stated in the original bill. New matter or new claims may be introduced, entitling complainant to additional or different relief from that specially prayed in the original bill, if it is not repugnant to the prayer and purpose. Whether the original bill contained equity — Avhether it presented a case of which the court could take cognizance. entitling complainant to relief — is not a material inquiry. If it did not, supplying or correcting its deficiencies was the proper office of an amendment.— Prickett v. Sibert. 75 .Ala. 315; Seals v. Pheiffer, 81 Ala. 518, 1 South. 267.” — Fite v. Kennamer, 90 Ala. 470, 473, 7 South. 920.
In Ingraham r. Foster. 31 Ala. 132, it is said: “To make an amendment improper, it is not enough that there he a mere inconsistency or repugnancy of allegation. There must be an inconsistency or repugnancy of
In Winston v. Mitchell, 87 Ala. 395, 5 South. 741, it was held that the bill sought to establish a resulting trust in lands, and that the complainant’s evidence established a constructive trust, and therefore that no relief could be had upon it. The cause was remanded in order that complainant might amend the bill to meet the evidence. The amendment was made so as to charge the respondent as a trustee in invitum and to enforce a constructive trust in conformity with the proof.’ A demurrer was interposed, assigning as grounds that the amendment made a new case and was barred by the statute of limitations of six years. On appeal this court held that the amendment was proper. — 93 Ala. 554, 9 South. 551. It said, amone: other things: “Notwithstanding the variation of the allegations, the subject-matter of the amended and original bill is the same, the cause T action is unchanged, the same character of relief is aj-
In Adams v. Phillips, 75 Ala. 463, after stating the limitation upon the right of amendment allowed by i he statute, it ivas said: “Within this limitation the right to amend is coextensive with the errors, omissions, defects, or imperfections existing in the original bill, which, if not cured, would prevent complainant Prom obtaining relief to which he may be entitled. * * *
An amended bill, asserting the same title, seeking the same relief, correcting only an erroneous statement of the cause of action in the original bill, or supplying a defective statement, is not to be regarded as introduc-tive of new matter or a new claim.”
In Jones v. Reese, 65 Ala. 134, it was held that, although plaintiff’s title to relief cannot be changed by amendment, it is permissible to change the averments of the bill as to the defendant’s title to the property sought to be subjected. It was held in Milner v. Stanford, 102 Ala. 277, 14 South. 644, that “a bill to enforce the specific performance of a contract may be amended so as to make it a bill to enforce a resulting trust; the relief being the same.”
The cases above cited and quoted were in equity. We shall now note a few of the cases at law, where the statute of amendment is analogous.
In Simpson v. M. & C. R. R. Co., 66 Ala. 85, the complaint claimed damages for the killing of plaintiff’s mule, and was framed under the act of February 3, 1877, imposing upon railroad companies an absolute liability for injuries to stock from’their trains, alleging no act of culpability on the part of the defendant, its agents, or servants. It failed to state a cause of action, for the reason that the statute was unconstitutional. The
In L. & N. R. R. Co. v. Woods, 105 Ala. 561, 17 South. 41, the action ivas by a brakeman in the service of defendant, and sought a recovery for injury to him, caused by the negligence of the defendant’s servants or employes, who ivere bis fellow servants, in failing to apply the brakes upon the cars and check the motion of the train to a speed of safety, etc. the amendment averred the injury, the same facts as to the employment of plaintiff, and that the injury arose from the negligence of the engineer, who bad charge of the engine, in permitting the train to attain a great rate of speed, etc. More than a year bad elapsed between the time the cause of action arose and the making of the amendment. the motion to strike the amendment ivas based upon an alleged departure. This court held that, notwithstanding the' original complaint did not show any liability, yet the matter alleged in the amendment was within the lis pen-dens of the original, and therefore related back to the commencement of suit. On a second appeal this ruling was adhered to and reaffirmed. — Id., 115 Ala. 527, 22 South. 33.
In Central of Georgia Railway Co. v. Foshee, 125 Ala. 223, 225, 27 South. 1006, after a review of many of our cases at law, tbe conclusion reached is set down in this language: “These authorities serve to fully support tbe proposition with which we began this discussion, viz., that, so long as counts added by amendment set up the same general transactions or occurrences upon which tbe original complaint relied for recovery, they do not introduce an entirely new cause of action and are not
It must be conceded that Avhat is here said Avith respect to departure in after-pleading not being the proper test to determine whether an amendment is a radical departure or introduces a new cause of action is directly opposed to what was said in Nelson v. First National Bank, 139 Ala. 590, 86 South. 707, 101 Am. St. Rep. 52, although this case is quoted from and cited approvingly. The writer is of the opinion that the Foshee Case states the law correctly, and that there is said in the Nelson Case, much that is opposed to many of our former adjudications. What is said in the Nelson Case with respect
Confessedly, many of the quotations indulged in by us are not directly apposite to the case in hand, but serve to illustrate the liberality of the statute of amendment as construed by this court, and indirectly support the conclusion which we will set down below. The amendment here seeks to enforce the same liability against the appellants that was sought (it may be ineffectually) to be enforced by the original bill, viz., their subscription obligations to the debtor company for its stock and for the bonds illegally obtained by them. It is true that the original bill showed the company could enforce the liabilities upon the subscription obligations, because there had been no legal payment or discharge of them; and the amended bill shows that, as between the apellant stockholders and the company, there had been a discharge from all liability upon those obligations. But under either aspect, as against the complaining creditor, there had been no payment — no discharge. Under the original bill the appellants were liable for their subscrip
Another ground of demurrer, which seems to be insisted on by one of counsel for appellants, is that it is nowhere averred when the alleged fraudulent transactions took place, and therefore the bill fails to show that complainants’ debt existed at the time of such transac
Our conclusion, therefore, is that the chancellor properly overruled the demurrer to the bill as amended.
Affirmed.
This brings us to a consideration of the cross-appeal, prosecuted by the complainants, to reverse the decree dismissing their amended bill as to the respondents O. 0. Wiley and Wiley & Murphree, and disallowing an amendment expressly waiving and striking out all claims in and by virtue of the assignments made to them of the written promises of these respondents. By the original bill it was charged that the respondents were subscribers to the stock of the insolvent debtor corporation and had given their promissory notes therefor, which had never been paid. It further charged a fraudulent scheme, between these respondents and one Saportas, to defraud the corporation and its creditors by attempting to relieve the respondents of their liability upon their notes. Fail-
On the last appeal is was held that complainants may acquiesce in the debtor’s fraudulent act of dispossession, waive their lien on the notes under their assignment to them as collateral, treat them as the unincumbered property of the debtor corporation, and as such pursue them into the hands of a fraudulent transferee or assignee of his debtor. It was also said that “it may be the bill is without equity in so far as it seeks to recover on the written promises assigned by the Alabama Terminal & • Improvement Company to the complainants as collateral security, counting upon assignments, and that it should be dismissed as to the obligors in those undertakings, Wiley and Clarence Murphree, upon their proper and separate motions.” This was upon the ground that complainants had an adequate remedy at law by action upon the notes. It will be observed that the original bill sought to condemn and subject the liability of these respondents as debts due to the corporation, treating the notes as the unincumbered property of the corporation. The amended bill seeks also to condemn and subject the same liability to the satisfaction of complainant’s debt, but as being the property of complainants by virtue of the transfer or assignment to them of the notes. The rejected amendment, as we have said, simply waived all claim by virtue of the assignment or transfer, going back
The question whether the judgment discharging the respondents as garnishees upon their answers in the garnishment proceeding is res adjudicata is not presented by this record. The chancellor held the plea insufficient, and of this the complainants cannot complain.
Reversed and remanded.
Concurrence Opinion
(concurring specially). — Lest there may be some misapprehension as to the concurrence in the foregoing opinion, I desire to say that I do not concur in the criticism of the case of Nelson v. First National Bank of Montgomery; my opinion being that that case is a valuable contribution to the law- on this vexed question, fixing definite rules which should be adhered to. My concurrence is simply upon the ground that the gravamen of this action, as at first instituted, was the claim that the stockholders had not really paid the amount agreed to be paid by their subscription, and the amendments complained of assert the same claim and pray the same relief.