Ware v. St. Louis Bagging & Rope Co.

47 Ala. 667 | Ala. | 1872

B. E. SAEEOLD, J.

The suit is by the appellees upon a domestic judgment recovered against the intestate of the appellant. The summons and complaint contain no other description of the plaintiff than as the “ St. Louis Bagging and Rope Co.”

The pleas of the defendant were — 1st, the general issue; 2d, nul tiel record; 3d, nul tiel corporation. On motion of the plaintiff, the third plea was stricken out, upon which the defendant excepted, and withdrew his second plea. The proceedings and judgment in the suit against the decedent were given in evidence, and are made a part of this record by the bill of exceptions. It appears that in that suit, tbe plaintiffs were described in tbe same manner as in this, and that judgment was by default.

It does not appear from tbe record that the plaintiffs sued as a corporation. The plea of nul tiel corporation was therefore irrelevant, and subject to be stricken out. — Rev. Code, § 2630.

The defendant can not make any objection to the judgment, the foundation of the suit, that his intestate could not have made. Section 2684 of the Revised Code says: “ When suit is brought by a firm, or in the name of a partnership, the plaintiff must not be required to prove the existence of the firm, or the individuals composing it, unless the same is denied by plea, verified by affidavit.” The name or firm used by a partnership is arbitrary and conventional. They may use the name of both, or of one of them alone, or any distinct designation, by which all will be included or bound, as if their names were used. — Par. on Part. p. 128. The judgment sued on, being by default, might have been reversed on error, under the authority of Reid & Co. v. McLeod, (20 Ala. 576). But in the present suit, as the defect in the complaint was neither demurred to, nor pleaded in abatement, and the cause was tried on a plea to the action, the defendant must be deemed to have waived it. — Ortez v. Jewett & Co., 28 Ala. 662.

The demurrer set out in the transcript seems not to have been .acted on. We presume it was waived. The matters assigned as ground for arrest of judgment are such as might have been, but were not, objected to before; the complaint contains a substantial cause of action, and therefore the judgment could not be arrested — Rev. Code, § 2811. The third ground of the motion is not sustained by the record.

The record evidence objected to in the assignment of errors, was received without objection on the trial, and admitted to be the proceedings of the courts they purported to be. No objection can now be taken to it.

The judgment is entered against the defendant individually, He was sued as administrator on á cause of action against Ms intestate. It will be amended, so as to conform to tbe complaint. — Rev. Code, §§ 3505, 3502; Hicks v. Barret, 40 Ala. 491.

Tbe act approved November 28, 1868, “to fix tbe time of bolding tbe city court of Montgomery,” is an independent law, not purporting to be amendatory of another. It does not, therefore, violate article 4, section 2, of tbe State con* stitution. — Ex parte Pollard, 40 Ala. 77.

Tbe judgment is amended, and affirmed.