Court of Appeals of AlabamaMay 28, 1957
39 Ala. App. 130 (Ala. Crim. App. 1957)
39 Ala. App. 13095 So. 2d 576

4 Div. 331.

May 28, 1957.

Appeal from the Circuit Court, Covington County, B.W. Simmons, J.

Prestwood Prestwood, Andalusia, for appellant.

The amendment of the complaint as to party or parties plaintiff was not a permissible amendment. Pickins v. Oliver, 32 Ala. 626.

A.R. Powell, Jr., Andalusia, for appellee.

On failure of appellant to file brief as required the appeal should be dismissed or the judgment affirmed. Rev. Rule Sup.Ct. 12. Amendment of complaint should be allowed by striking out or adding new parties plaintiff so long as the amendment does not work a complete change of parties. Code 1940, Tit. 7, § 239; Edwards v. Smith, 240 Ala. 397, 199 So. 811; Benson v. Robinson, 223 Ala. 85, 134 So. 799; Lowery v. Rowland, 104 Ala. 420, 16 So. 88; Paterson Lbr. Co. v. Patrick, 202 Ala. 363, 80 So. 445; Lansburg Co. v. Cohen, 52 Ala. 180; Godbold v. Blair Co., 27 Ala. 592.

Patterson has appealed from a judgment of the Covington Circuit Court for $872.36 in favor of Stickney awarded as the balance due in an action for detinue and on a note annexed to a chattel mortgage. Bern v. Rosen, 36 Ala. App. 296, 55 So.2d 361.

The paper had originally been made by Patterson to Andalusia Equipment Company, a partnership composed of F.G. Stickney and Wade Crouch who negotiated it to the Commercial Bank with recourse. Patterson defaulted in January, 1954, and in July of that year the bank for value received, by written endorsement, assigned the paper without recourse to F.G. Stickney and Virginia M. Stickney, doing business as Andalusia Equipment Company. During trial Mrs. Stickney was added as a party plaintiff. This amendment was within the ambit of Code 1940, Title 7, Section 239, and neither worked a complete change of parties (the trade name of Andalusia Equipment Company having been shown on the originating summons as Fred G. Stickney, trading and doing business as Andalusia Equipment Company) nor of the cause of action. Thus in Lansburg Co. v. Cohen, 52 Ala. 180, it was held error not to allow the plaintiff to strike out the name of Fleischmann, a dead partner. The construction of the section used in Godbold v. Blair Co., 27 Ala. 592, fits here: "There was * * * no error in allowing the plaintiff to amend the complaint by inserting the name of Sedberry as composing, with Blair, the firm of H.D. Blair Co." Fred and Virginia as assignees were the requisite parties plaintiff, Code 1940, Title 39, Section 200.

The appellant introduced no evidence. The plaintiff made out a case on legal evidence which supports the judgment.

Under Supreme Court Rule 12, Code 1940, Tit. 7, Appendix, the appellant's brief was one day late, and under the orders of the senior tribunal at 90 So.2d pages 926 and 927 the motion of the appellee was apt.

The judgment of the circuit court is