Seymour & Sons v. Thomas Harrow Co. , 81 Ala. 250 ( 1886 )

CLOPTON, J.

— The appeal is taken from a judgment by default, rendered in a suit brought by appellee against appellants on a promissory note made by them, and payable to plaintiff, as it appears from the complaint. It is not averred, that the plaintiff is a corporation, or an unincorporated company, or a partnership. "When a suit is brought by a partnership or an unincorporated company, the individual members are proper and necessary parties, and their names should be set forth in the complaint; but when the suit is by a corporation, it is unnecessary to aver the corporate existence of the plaintiff, or to prove it, unless put in issue by an appropriate plea. Counsel for appellants assume that the action is brought in the name of a partnership, and on this assumption insist, that as the record does not disclose the names of the individual members, the complaint is insufficient to support a judgment by default, on appeal. The assumption is unauthorized by anything appearing from the record, and should not be indulged for the purpose of reversing the judgment.

When the name of the plaintiff fairly imports either a partnership or an incorporated company, and the record is silent as to the character of the plaintiff, no presumption either way arises, and is not created by the mere use of the plural number. When an action is brought in a name appropriate for a corporation, or which may fairly import corporate character, and the capacity to sue is not put in issue, the capacity to sue, and corporate existence, if necessary, will be intended for the purposes of the suit. ' As the complaint does not show that the plaintiff is not a corporation, and incapacity to sue does not appear on its face, it is not subject to demurrer founded on such objection, and being sufficient on demurrei-, will support a judgment by default on appeal. — McKenzie v. Board of School Trustees, 72 Ind. 189; Union Mut. Ins. Co. v. Osgood, 1 Duer, 707; Stanley v. R. & D. R. R. Co., 89 N. C. 331.

During the pendency of the appeal, the judgment was amended, nunc pro tunc, in respect to proof of acknowledgment of service of process, and to the waiver of exemptions. Such amendment may be properly made at a subsequent term of the court, after an appeal has been taken, the purpose being to make the record speak the truth ; and when properly certified to this court is before us for consideration, and relates back, and sustains the judgment. The defects and irregularities in the judgment entry, complained of, were remedied by the amendment. — Cunningham v. Fountain, 25 Ala. 644; Ware v. Brewer, 34 Ala. 114; Harris v. Martin, 39 Ala. 556.

Affirmed. -