59 So. 364 | Ala. Ct. App. | 1912
1. When the plaintiff amended his complaint by striking from it all of the parties defendant except appellant, the amendment related back to the commencement of the suit; and the original summons and complaint was to be read, after such amendment was allowed, as if there had never been but one defendant to the suit, viz., the appellant. — Cobb v. Keith, Smith & Co., 110 Ala. 614, 18 South. 325.
After the appellee had amended his complaint by striking out all of the parties defendant except appellant,
In counts 5, 6, and 7 of the complaint as amended, the parties defendant are described as “R. D. Goss, formerly doing business as the Alabama Couch Manufacturing Company, and the Alabama Couch Manufacturing Company.” When counts 5, 6, and 7 were added to the complaint as amended, Goss was not then doing busi
We are therefore confronted with an incongruous and peculiar situation, if we íoIIoav the language of' the complaint, as the laAV says we must, with reference-to the complaint as amended. ' The first four counts are against Goss alone, and those four counts are the common counts. The court, against the objection of the appellant, permitted the appellee, by amendment, to add counts 5, 6, and 7 to his complaint, Avhich counts seek a recovery from two defendants, Goss and the Alabama Couch Manufacturing Company. If the facts set up in said counts 5 and 6 are true, the appellant and the Couch Manufacturing Company — if, indeed, there is. such a company — may be jointly liable for the debt sued for if the facts set up in said count 7 are true, appellant and the manufacturing company are not jointly, but only severally, liable, if, indeed, count 7 shows any liability whatever as to the manufacturing company.
Counts 5, 6, and 7 Avere therefore, on account of the situation above pointed out, subject to some of the objections interposed by the appellant to the action of the court in allowing them to be added as amendments to the complaint, and to some of the grounds of demurrer interposed to them after they were added to the complaint as amended.
We are disposed to think, koAvever, from an examination of the entire record, that the Alabama Couch Manufacturing Company may not, in fact, however, have existed at the time of the trial, or, in fact, for some time before the trial; and that, upon another trial, with the name of the manufacturing- company eliminated as a party defendant from said counts, the counts can properly be alloAved by the court as amendments to the complaint. — Elmore, Quillian & Co. v. Cunningham, 4 Ala. App. 650, 58 South. 1004.
We gather from the record that the appellee expected the evidence to show, in substance, that Lindsay and Walker were partners, doing business under the name and style of the Alabama Couch Manufacturing Company, and that they became indebted to appellee; that while they Avere so indebted to appellee the appellant bought out the business of such partnership, assuming all the liabilities of the concern, and continuing the business under the name of the Alabama Couch Manufacturing Company. If this be true, the written evidence — if there was written evidence — of the agreement on the part of appellant that he avouM pay the debts of Lindsay and Walker would, in all probability, be found in the possession of Walker and Lindsay, and not in the possession of appellant. At any rate, there Avas no evi
The court, in making the above order, under the facts in this case, committed reversible error. When the court made the first order, requiring the production of the paper, it had no evidence before it that the appellant had, to use the language of section 4058 of the Code, the paper “in his possession, custody, control or power.”
3. As this case must be again tried, we call attention to the condition of counts 5 and 6 of the complaint as amended. In these counts the pleader, we think, intends to set up that Lindsay and Walker, while doing business as- the Alabama Couch Manufacturing Company, ordered a lot of goods from appellee; that the order was filled by appellee, and that the goods were by the appellee shipped to- the Alabama Couch Manufacturing Company, but that before the goods were so shipped Lindsay and Walker had sold the business of the Alabama Couch Manufacturing Company to appel
Reversed and remanded.