Long v. Patterson

51 Ala. 414 | Ala. | 1874

BRICKELL, J.

The only limit to the right of amendment, under our statutes, is, that there must not be an entire change of parties, nor the substitution of an entirely new cause of action. Crimm’s Adm’rs v. Crawford, 29 Ala. 623. The amendment asked in this case proposed no change of parties, and no substitution of a new cause of action. The cause of action was the promissory note, or due-bill, which was misdescribed in the original complaint. In legal contemplation, the original complaint described it as payable to the plaintiff himself; while the amendment proposed a correction of this misdescription, by averring that it was in fact payable to a third person, but was the property of the plaintiff. The amendment should have been allowed, as should any other amendment merely correcting a misdescription of the instrument on which the suit is founded. In Reed v. Scott (30 Ala. 640), the complaint described the instrument sued on as a promissory note ; and an amendment describing it as a bond, or instrument under seal, was held proper and allowable. The difference between the original and amended complaints, in the description of the cause of action, was as great in that case as in this. The proposed amendment cut off no meritorious defence which might have been offered, operated no prejudice to the defendant, and merely produced a correspondence between the cause of action alleged and that offered in evidence. The court erred in not permitting the amendment to be made. The judgment of nonsuit is, therefore, set aside, and the cause is remanded.