Ex Parte Whitt
Petitioner was complainant in an equity suit against Taylor Wheeler Grocеry Company, a corporation, seeking in her bill relief as to certаin described real estate, details of which are here unnecessаry to relate. She was met by a plea in abatement to the effeсt that defendant was not a corporation. Thereupon complainant sought to amend her bill, first, by changing the caption to read “Edith Tittle Whitt versus W. M. Wilsоn and W. A. Brown, a partnership doing business as Taylor Wheeler Grocery Company,” and, second, by amending the first paragraph of the bill by striking out the words “that rеspondent is a corporation,” and inserting in lieu thereof “that respondent is a partnership composed of W. M. Wilson and W. A. Brown doing business as Taylor Wheeler Grocery Company.” The prayer of the bill was amended by striking out the words “Taylor Wheeler Grocery Company, a corporation,” and inserting in lieu thereof the words, “W. M. Wilson and W. A. Brown, a partnership doing business as Tаylor Wheeler Grocery Company.”
Defendant’s motion to strike this amendmеnt on the ground that it worked an entire change of parties, was sustained by the chancellor, and complainant seeks by this petition for mandamus tо review this ruling.
That the ruling is properly tested in this manner is not here controvertеd. Ex parte Nicrosi,
The amendment indicates that in its preparation the difference as to a suit against a partnership, as such, and the membеrs of the firm, was not kept clearly in mind. Ory-Cohen v. Taylor,
There is, therefore, no question as to the identity, but only as to the description, the entity — Taylor Wheeler Grocery Company — is the same; and the case of Ex parte Niсrosi,
Our statute as to the allowance of an amendment to a bill (section 6558, Michie’s Code of 1928) is broad and liberal, “and its administration has been and must continue to be characterized by the same liberal spirit and beneficent purpose that inspired its adoption” (Ex parte Delpey,
The chancellor in striking the amendment accompanied his order ,with an opinion in which mаny of our pertinent authorities are cited, and in which he expresses sоme doubt as to the correctness of the conclusion reached, in view of what he considers some conflict in our authorities. But we differ in his conclusion that the amendment does not make the partnership a party defendant. We have stated our conviction that it does.
In the case of Compton v. Smith,
As we construe the amended bill, the partnership is the party defendаnt, and reference to the individuals composing it by way of description only as the amendment of paragraph one so clearly indicates. As thus construed, it is clear enough that under the authorities noted above the amend-' ment was allowable.
Let the writ issue as prayed.
Mandamus awarded.