134 So. 856 | Ala. | 1931
On the last appeal (Kelen v. Brewer,
It is here insisted the allowance of this amendment was error upon the theory that it worked an entire change of parties, and that the cause was due to be discontinued. Petitioner relies primarily upon Fowlkes v. Memphis, etc., R. R. Co.,
But we are not persuaded the amendment here considered worked an entire change of parties. The suit as originally brought was for the benefit of the ward, the lunatic, and was by the guardian in his representative capacity. To meet the requirements of equity pleading, it was necessary that the lunatic herself be made a party to be bound by the proceedings. The amendment was to make her a party, but the guardian who in his representative capacity first brought the suit is still in the cause in such capacity, for the bill is in the name of the ward "by her guardian Alex Brewer." Though not directly in point, the cases permitting amendment as to show the action maintained in a representative rather than in an individual capacity are not lacking in analogy. Lucas v. Pittman,
The case of West v. West, supra, is authority for the allowance of the amendment in the instant case. There the suit was originally by the guardian in his representative capacity. The holding was that the ward was a necessary party complainant, that the demurrer taking the point "should have been sustained, and the complainant allowed to amend his bill."
The case of Fowlkes v. Memphis, etc., R. R. Co., supra, upon which petitioner relies, is distinguishable from that here presented. There the action at law was brought by Cynthia L. Fowlkes as the sole party plaintiff; the court evidently treating the words "guardian of Ramon H. Fowlkes" as merely descriptive and surplusage under the rule recognized by our authorities. Hallmark v. Hopper,
Like observations are applicable to the case of Dougherty v. Powe, supra, stressed by petitioner.
But the instant case concerns the legally appointed guardian who properly represents the interests of the ward, who may control the litigation, and by express provision of our statute may supplant and be substituted in the place of a next friend. Section 6519, Code 1923. Such guardian remains a party to the cause, and the amendment permitting the party beneficially interested, the ward, to be made a party complainant, did not work an entire change of parties. Whitfield v. Howard,
We conclude, therefore, that the chancellor correctly ruled, and the mandamus will be denied.
Writ denied.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.