Lewis Lumber Co. v. Camody

137 Ala. 578 | Ala. | 1902

TYSON, J.

Although there are a number of errors assigned, but two. of them are insisted upon in brief of counsel.

The first of these is predicated upon the action of the court in overruling the defendant’s motion to strike the amendment of the complaint which had been allowed. This amendment consists in striking out of the caption of the complaint the words “a firm composed of B. A. Lewis et al. and B. A. Lewis, individually,” and inserting in lieu thereof the words, “a corporation organized under the laws of the Statei of Maine,” mailing the caption as amended read “M. C. Camody vs. The Lewis Lumber Company, a corporation,” etc. The ground of the motion insisted upon, is that the: amendment substitutes a new party defendant. The party sued' is “The Lends Lumber Company,” and the words stricken out and those added are merely descriptive. The 'amendment. wa.s permissible. — Western Railway of Ala. v. Sistrunk, 85 Ala 352; Southern Life Ins. Co. v. Roberts, 60 Ala. 431; Ex parte Nicrosi, 103 Ala. 104.

If the contract sued on was not executed by the defendant, but was the contract of some other person or firm doing business under the name of “The Lewis Lumber Company,” that was a matter of defense.

The other insistence is¡, the court erred in striking the defendant’s motion “to quash the return and summons because they fail to show service on any authorized officer or agent of the corporation.” Whatever may have been the right of the, defendant to appear specially for the purpose of quashing the service of the summons, upon the ground stated, it had no right to have the summons quashed. Nor had it the right to appear specially for this purpose after having appeared generally and interposed a demurrer 'to the complaint. Having appeared and demurred to the complaint, the regularity of tbe service of the summons and complaint ceased to be of importance. Doubtless this motion was made upon tbe theory that thei defendant had not become a party to the action until after the amendment above considered by us was allowed, .and that the demurrer interposed to the complaint previous to the allowance of 'the amendment-was not its demurrer. Having shown that the amendment worked no change of parties, but was merely a change in the description of the defendant who was in court all the while, the demurrer interposed was its demurrer.

Affirmed.