Ward v. Patton, 75 Ala. 207

Ward v. Patton

75 Ala. 207 | Ala. | 1883

BBICKELL, C. J.

The original bill was filed by the appellant as a judgment creditor of Bobert Fearn, to be let in to redeem, under the statute, certain lands the appellee had purchased at sheriff’s sale, and which were subsequently redeemed from him by George P. Beirne, as administrator of Charles *208EL Patton, another judgment creditor of Fearn. Subsequent amendments converted the bill into a bill for the enforcement of a trust concerning the lands, supposed to arise from an agreement into which the appellant, the appellee and Beirne had entered. The last amendment, to which a demurrer'was sustained, all other parties defendant having been stricken out, reduced the bill to a demand for the recovery of damages from the appellee, because, by an alienation to a stranger pending the suit, he had incapacitated himself from executing the trust, or performing the agreement.

The amendment of a bill is not the institution of a new suit; it is the mere continuation of the original suit. When it is not, under the statute, employed for the purpose of introducing supplemental matter, facts occurring since the filing of the original bill, the office of an amended bill is curing defects in the original bill, and not the introduction of new matter, varying substantially the relief prayed, or the right in which it is claimed.—Ray v. Womble, 56 Ala. 32. A bill may be framed originally in a double aspect, or in the alternative, as it is sometimes expressed ; or, if not so framed originally, may, by amendment, be converted into a bill of that character. But by this it is not intended that a complainant may introduce into a bill originally, or by amendment, several inconsistent claims to relief, founded on differing states of fact, either of which, if true, entitled him to relief of a wholly different character. Each alternative must be the foundation for like relief, or for relief of the same character.—Lehman v. Meyer, 67 Ala. 396. It is obvious the original bill would have been fatally defective, if into it had been introduced, as alternative grounds for relief, the matters stated in the several amended bills; or if these matters had been stated, and the relief prayed in reference to them had been prayed in the original büí.

The amendments, it is also apparent, departed entirely from the case made by the original bill, introduced an essentially new case, entitling the plaintiff to relief in a different right, upon a different title, and of a different character, from that claimed, or to which he was entitled under the original bill. There was no error in sustaining the demurrer, and the decree is affirmed.