Davis Avenue Railroad v. Mallon
Supreme Court of Alabama
Appeal from Circuit Court of Mobile. Tried before Hon. Harry T. Toulmin. The appellee, Mallon, sued “ Daniel McGill, President of the Davis Avenue Railroad Company,” before a justice of the peace, and recovered judgment against him. On appeal to the Circuit Court, Mallon filed a complaint against “ The Davis Avenue Railroad Company.”
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Appeal from Circuit Court of Mobile. Tried before Hon. Harry T. Toulmin. The appellee, Mallon, sued “ Daniel McGill, President of the Davis Avenue Railroad Company,” before a justice of the peace, and recovered judgment against him. On appeal to the Circuit Court, Mallon filed a complaint against “ The Davis Avenue Railroad Company.” Appellant thereupon moved to strike the complaint from the file, on the ground that it was a substitution of a new party defendant, made a new case, and was unauthorized by the statute of amendments. The court overruled the motion, and the cause proceeded to…
1Opinion of the CourtStone, J.
While our statute of amendments is exceedingly liberal, it has uniformly been held that it is not permissible to strike out a sole party, either plaintiff or -defendant, and insert another.—Leaird v. Moore, 27 Ala. 326; Friend v. Oliver, ib. 532; Crimm, v. Crawford, 29 Ala. 623.
And the same rule has been maintained steadily in cases of appeal from judgments of justices of the peace, although such causes are required to be “ tried according to equity and justice, without regard to any defect in the summons or ■other proceeding before the justice.” And when, in case of appeal or otherwise, the…
2Cases cited7 opinions
- Crimm's Adm'rs v. CrawfordSupreme Court of Alabama · 1857
- Leaird v. MooreSupreme Court of Alabama · 1855
- Elliott v. Smith & Co. ex rel. HarralsonSupreme Court of Alabama · 1840
- Otis v. ThornSupreme Court of Alabama · 1850
- Wilson v. CollinsSupreme Court of Alabama · 1846
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