McCrory v. Guyton

51 So. 312 | Ala. | 1910

ANDERSON, J.

While we have separate statutes as to amendments in law and in chancery cases, our court decided as far back as the case of Moore v. Alvis, 54 Ala. 356, thgt the Legislature intended to make the rule of amendments in chancery conform substantially to the rule governing amendments of pleading in suits at law. It was there held that any amendment might be made to meet the justice of. the case or any state of the proof, provided it would not effect an entire change of parties or work a change of the cause of action. The question was again gone over in the cases of Hall & Farley v. Ala. Co., 152 Ala. 263, 44 South. 592, and Alabama Co. v. Heald, 154 Ala. 580, 45 South. 686, and the same statutes of amendments were there liberally construed; but the rule that the amendments could not work an entire change of parties or a departure from the original cause of action was reiterated, the difference, between the judges, being as to Avhat, did and what did not constitute a departure. In the case of Ala. Co. v. Watson, 158 Ala. 166, 48 South. 506, the original complaint was for an account between the plaintiff and the defendant, and the amendment Avas on an account due from a firm of which the defendant Avas a member. This court, folloAving the case of Ivy Coal Co. v. Long, 139 Ala. 535, 36 South. 722, held that the amendment set up a separate and distinct claim from the one counted on in the original complaint. In the Watson Case, supra, the court, through the present writer, commenting on the Heald Case, supra, and the test there applied, said that amendments were permissible “if a recovery under either count would bar a recovery under the other; non constat, if one Avould be no bar to the other, the amendment Avould be a departure.”

The original bill in the case at bar sought to enforce a vendor’s lien by the complainant as assignee of David E. Allen, the vendor of the land, and the last amendment Avas to enforce a lien as the assignee of Jane Allen, the vendor of the land. It may be that the bill was to enforce a vendor’s lien on certain lapd; but the lien set forth in the original was a different claim or cause of action from the one set out in the amendment. Applying the test set up in the Watson Case, supra, a decree on the claim set up in the original bill could be no bar to the enforcement of the claim described in the amendment, and there was, of necessity, a departure. We do not think that the amendment was permissible under the. Watson and Ivy Cases, supra; but, in addition to these cases, the case of Penn v. Spence, 54 Ala. 35, is almost, if not quite, in point against the amendment in the present case. The Penn Case, supra, was cited with approval in the case of Moore v. Alvis, supra. The chancellor erred in allowing the last amendment to the bill, and in not sustaining the appellant’s demurrer thereto, which was a sufficient objection to said amendment.

The decree of the chancellor is reversed, and one is here rendered sustaining the demurrer to the amended bill.

Reversed and remanded.

Dowdell, C. J., and Sayre and Evans, JJ., concur.