122 Ala. 264 | Ala. | 1898
— Upon the theory that the plaintiffs were partners and were suing for the taking of their partnership property, the action was properly brought in their individual names, and the amendment describing the plaintiffs as partners if not necessary to be made did not make any change of parties. Since a partnership is not a person, either natural or artificial, it cannot sue as a party plaintiff in the firm name. — Moore & McGee v. Burns & Co., 60 Ala. 269; Lanford v. Patton, Donegan & Co., 44 Ala. 584. The addition of the firm name “Vowell Lumber Co.,” whereby it appears in the complaint as a party plaintiff was unavailing for such purpose, but the objection to these amendments coming by motion to strike out the whole complaint as amended on the ground that it was a departure was not well taken and was properly overruled. The addition of the words “as sheriff of Etowah County, Alabama” to the defendant’s name was merely descriptive of the defendant, and the refusal of the court to strike them out was harmless to the defendant.
This appeal is from a judgment rendered against appellant for the value only of lumber levied on and sold by him as sheriff, and the other property mentioned in the complaint is not here involved.
It appears from the evidence that a half interest in the saw mill at which the lumber was made was rented in 1886 for plaintiff A. P. Vowell by her husband who used therefor $200 of her money. ■ That he thereafter
The creditors of D. N. VoAvell had no legal right to require that his personal services should be devoted to the extinguishment of their claims, and the fact that his labor" in, and management of, the business resulted in profits Avhich paid in part for the mill and for its operation did not render the lumber, or Mrs. Vo well’s interest therein, subject to the execution. — Wheeler v. Biggs (Miss.), 15 So. Rep. 118. The evidence was sufficient to
The complaint claims for only 26,000 feet, the value of which' estimated according to the proof and upon the lumber of the best class taken is $227.65. The judgment of the city court is for $366.73 which, though corresponding to the value of the lumber shown by the proof to have been taken, was plainly excessive of the claim as made by the complaint. The jury having been waived, the judgment will be reversed and here rendered that the plaintiffs recover of the defendant two hundred and fifty-five dollars and twenty cents, being the value with interest of the lumber claimed for in the complaint, besides his cost in the city court, exclusive of the costs of the appeal which will be taxed against the appellee.
Keversed and rendered.