115 So. 174 | Ala. | 1928
With respect to the bill of complaint, appellant's insistence is that the showing of a judgment for complainant againstWm. R. Remond, even with the showing that the real person, who was sued and served with process, and who actually appeared and defended the suit, without objection because of the misnomer, was N.W. Remond, is not sufficient to fasten liability upon the appellant company as insurer of N.W. Remond, under the provisions of sections 8376 and 8377 of the Code. These statutes impose an absolute liability upon the insurer when the loss or damage for which the insured is liable occurs, and authorize a suit in equity by the injured plaintiff in judgment against the defendant and the insurance company, to have the insurance money applied to the satisfaction of the judgment, if the judgment has remained unsatisfied for 30 days after its rendition. Globe Indemnity Co. v. Martin,
Under the allegations of the bill of complaint, as amended, the judgment obtained against Wm. R. Remond was unquestionably a good judgment against N.W. Remond, because N.W. Remond was the person intended to be sued, and the person actually served with the process, and the person against whom the judgment was actually rendered without any objection from him that he was misnamed in the complaint. To this conclusion the authorities are overwhelming, if not unanimous (33 Corp. Jur. 1200, § 132), and our own decisions are clearly and specifically in accord (Naftel Dry Goods Co. v. Mitchell,
As observed in the last-cited case, "When it becomes necessary to aver or plead the judgment, the real party, notwithstanding the mistaken name, may be connected with it by averment of his proper name."
If such a judgment is binding on the misnamed defendant in his own proper name, when duly identified, it is certainly binding on his insurer, as seems to be fully conceded by counsel for appellant.
We are not concerned here with the principles that restrict the right of a plaintiff to amend the record of his judgment nunc pro tunc, as argued by counsel for appellant, for such an amendment is not proposed, nor is it at all necessary to the attainment of the relief sought by the complainant in this bill. The demurrer to the bill, as amended, was properly overruled.
The only other question presented is upon the respondent company's demurrer challenging the right of its correspondent, the Shop, Inc., to maintain its cross-bill against the demurrant.
As to this it will be sufficient to say that, although the statute (Code, § 8377) gives no right of suit against the insurance company in favor of one of several joint defendants in judgment who is not insured under the contract of insurance, even when the insured defendant is, as to his codefendants, primarily liable, yet, when it appears, as here, in a suit like this, that the insured defendant is primarily liable to the plaintiff, that he had contracted with his codefendant to include him as a beneficial party in the protection of the policy, and that the insurance company voluntarily assumed and conducted the entire defense of the suit in behalf of both defendants, we think that the uninsured defendant shows an equitable interest in the contract of insurance, and an equitable right to have it applied to the satisfaction of the joint judgment. We do not mean to hold that this cross-complainant could maintain an original bill for that purpose, for that question is not before us; but, the parties being before the court under the original bill, all subordinate and dependent equities may and should be settled in this suit, so that the various rights of the parties, growing out of the main issue and subject-matter, and related thereto, may be finally determined. Kimball v. Cunningham Hdw. Co.,
Finding no error in the rulings of the trial court, the decree appealed from will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.