113 So. 82 | Ala. | 1927
With respect to the statutory right to amend a complaint "by striking out or adding new parties plaintiff, or by striking out or adding new parties defendant" (Code 1852, § 2403), it was held in Leaird v. Moore,
The original construction has been uniformly adhered to by this court, and the restriction stated is as fully a part of the statute as if it were expressed therein. Rarden Merc. Co. v. Whiteside,
And it is settled that successive amendments whereby a new party is first added, and then the original party is stricken out, discontinues the cause as effectually as if both results were accomplished at once by a single amendment. Rarden Merc. Co. v. Whiteside, supra; Roth v. Scruggs, supra; Pickens v. Oliver,
The rule of these decisions, unless changed by statute, undoubtedly governs the instant case. This is conceded by counsel for appellant. The insistence, however, is that this rule was in fact changed by the Act of September 8, 1915, amending section 2502 of the Code of 1907 (now section 5718 of the Code of 1923), and that the decisions since that time have taken no account of this amended statute.
Prior to the amendment of 1915, this statute simply authorized the plaintiff, in a suit against two or more persons on any joint or joint and several contract or cause of action, to discontinue as to defendants not served, and to proceed to judgment against the others. The amended statute provides that the plaintiff, in such an action against one or more persons, "may at any time amend the summons and complaint by striking out, or adding parties plaintiff or defendant, whether served or not, and such amendment shall not work a discontinuance as to any defendant not stricken out; but the plaintiff may recover such judgment as he may be entitled to against any one or more of the defendants."
We do not think the Legislature intended, by these changes in the statute relating to discontinuances, to affect the statute regulating amendments, nor, as insisted by counsel for appellant, to destroy the rule declared in Rarden Merc. Co. v. Whiteside,
Construing section 5718 in connection with section 9513, and looking to the distinct history and operation of each of them, we think that the above-quoted part of section 5718 means merely that, where the action is against several defendants and one or more of them has been stricken out by amendment, there is no discontinuance as to the one or more remaining defendants, and that, as to him or them, the plaintiff may proceed to judgment. The amended statute is awkwardly constructed, and some of its parts are not mutually adaptable, the part quoted being, by its very terms, necessarily restricted in its application to the single case where one or more original parties defendant have been stricken and one or more original parties remain.
Our conclusion is that section 5718 is without application to this case, and the ruling of the circuit court in granting the discontinuance as to appellee will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.
