Dowling v. Blackman

70 Ala. 303 | Ala. | 1881

SOMEBVILLE, J.

Wé are not disposed to depart from the principles announced in this case when here before on appeal, as reported under the title of Blackman v. Dowling, 63 Ala. 304. We adhere to these principles, without further discussion of them.

2. The amendment of the complaint, authorized by the court, was properly allowed. “ The only limit to the right of amendment, under our statutes, is, that there must not be an entire change of parties, nor the substitution of an. entirely new cause of action.”—Long v. Patterson, 51 Ala. 414.

3. Nor was the new count, as substituted by the amendment, barred by the statute of limitations. It set up no new claim or matter, but simply varied the description of an instrument already in suit. Where such is the case, the amendment, when allowed, relates back to the date of filing the original complaint. The following decisions of this court fully sustain the action of the court in allowing the amendment: Stringer v. Waters, 63 Ala. 361; King v. Avery, 37 Ala. 169; Reed v. Scott, 30 Ala. 640; Lansford v. Scott, 51 Ala. 557; Long v. Patterson, Ib. 414.

4. The accounting between Dowling and Blackman, after the service of the writ of garnishment on the former, at the suit of Barrow, would presumptively include all items of debt and credit existing at that time between them, and then overdue. The evidence is free from conflict, showing that the present cause of action had not then accrued against the appellant, in Blackman’s favor, the amount claimed being payable on a contingency which had not then transpired.

5. We can not assume that there was any unfairness, or fraud, in the transactions between Tyson and the Post-Office Department of the general government. The regularity of the official action reducing Tyson’s pay as a mail-route contractor, and the subsequent rescinding of this order so as to restore such pay, can not be collaterally assailed in this suit. Besides, if Tyson collected such compensation under color of his contract with the government, he would be liable to account for the amount to Dowling; and being the only person to whom the money could be legally paid, he was, of necessity, pro hoc vice, the agent of Dowiing for its collection.—Blackman v. Dowling, 63 Ala. 304.

6. The admission of the account between the government and Tyson, as certified by the Auditor of the Post-Office Department, was not a reversible error. It was admitted, very clearly, but for one purpose; and that was, to show the payment to Tyson of the money here in controversy, — a fact which is no where disputed by either party, but is entirely uncontroverted. The admission of such redundant evidence is not a ground sufficient to authorize a reversal. It is superfluous, and, at most error, without injury.—Railroad Co. v. Sanford, 36 Ala. 703.

We discover no error in the rulings of the Circuit Court, and its judgment is affirmed.