Ex parte Nicrosi

103 Ala. 104 | Ala. | 1893

McCLELLAN, J.

The petitioner, D. M.Nicrosi, made and filed in the circuit court of Montgomery, an affidavit for an attachment against The Roswald Grocery Company to enforce a landlord’s lien for rent. In said affidavit, the attachment bond and in the writ of attachment the said company is described as a corporation, i. e., in each of these papers that company is referred to as “The Roswald Grocery Company, a corporation.” It having developed that The Roswald Grocery Company was not in fact a corporation, nor even a partnership, but the name under and by which Esther Roswald, a married woman, having the right to engage in business, carried on a grocery business in the house rented from plaintiff, and which, through her agent, she signed to the notes for the rent sought to be recovered, the plaintiff moved for leave to file an amended affidavit and bond and to amend the attachment writ so that the words “Esther Roswald, a married woman, doing business by the written consent of her husband, filed and recorded in the probate court of Montgomery county, under the name and style of‘The Roswald Grocery Company’ should appear in each in lieu of the words ‘The Roswald Grocery Company, a corporation.’ ” The court denied this motion, and we are now asked to issue a writ of mandamus to the judge thereof directing the allowance of the proposed amendments.

From this statement of the facts it is clear that the Boswald Grocery Company, whatever it was, whether a partnership, a corporation, or an individual assuming the name for the purposes of trade, was the party against whom or which the suit was instituted, has all along been prosecuted, and will be continued if and after the amendments moved for are allowed. There is, in other words, no question here as to the identity of the defendant, throughout all the proceedings which have been or may, in any proposed event, be had, being originally and at all times the same in the mind of the plaintiff. The entity which entered into the rental contract, which has enjoyed the shelter of plaintiff's house, which has failed to pay the agreed price therefor, and which is sought in this action to be coerced into payment thereof, is one and the same, whether it be a contractual entity— a partnership, an artificial entity — a corporation, or a personal entity — an individual; and whether one or another of these entities, its name is the same — “The Noswald Grocery Company and its liability is the same and enforceable by the same remedies. That entity, whatever its character or the source or manner of its being, was proceeded against originally in this case and brought before the court by attachment of its property. Once there, it was found that a mistake had been made, not as to the entity itself — not as to the party sued — but merely in respect of describing what kind of an entity the party defendant was. The motion to amend stated and confessed this mistake of description ; the plaintiff averred and showed this mistake, and he asked to correct it. He in effect said to the court that, while he had sued the proper party, and had levied on the goods of the proper party, he had misdescribed that party, not indeed in respect even of the name of the defendant, but in respect solely of the status of that proper party as being an artificial instead of a personal entity. For surely the averment that The Roswald Grocery Company was a corporation is no part of the name of that company. It might as well be said that to'aver that Jones & Smith is a partnership is to make the averment of partnership a part of the name “Jones & Smith,” or that to sue “John Smith, a man,” is to make the defendant’s name, not John Smith only, but “John Smith,.a man.” And to omit such averments no more changes the name of the corporation than of the partnership or the individual. It is not a question of name; and cases like Western Railway of Alabama v. McCall, 89 Ala. 375, have no bearing upon it. But it is a matter of description, a change of which does not affect the identity of the party sought to be described, but only gives accuracy and certainty to it. The case of Western Railway of Alabama v. Sistrunk, 85 Ala. 356, is, on principle, in point. The averment that a defendant is a corporation is there held to be descriptive of a named defendant., and not a part of the name itself, and that where this description had been omitted, it might be added without offense to the limitations upon our very broad statutes of amendments. Its addition did not change the party sued. Being merely descriptive, when it is at first stated by mistake, it is not conceivable how its elimination could make of that thing which it was incorrectly supposed to describe a different thing. To add it does not change the name— being no part of the name — and, it being already stated, to, strike it out, can not. Being stricken out in this case the suit is against The Roswald Grocery Company. The further amendment is that this company is Esther Roswald and that she is engaged in business, rented this house, executed these notes and owes this debt under the name and style of “The Roswald Grocery Company or, in other words that she is and all along has been The Roswald Grocery Company for all the purposes of this suit. Obviously this part of the amendment, so far from operating a change of the sole party defendant, on its face demonstrates that she is the identical party originally sued under the name which she had assumed and borne throughout the transactions involved in the suit. The amendments should have been allowed. We feel that a different conclusion would be to emasculate our very liberal, and to be liberally construed, statute on the subject which requires the allowance of amendments to cure “any defect of form or substance” in attachment affidavits, bonds and writs, (Code, § 2998) ; and to do violence to the principles declared in Railway Co. v. Sistrunk, supra, and to the analogies furnished by the cases cited in the brief of petitioner’s counsel, having reference to amendments as to parties in actions involving partnerships.

The application for mandamus will be granted.