Garner v. Garner , 107 Ala. 242 ( 1894 )

BRICKELL, O. J.

The complaint would have been more formal, if following the summons, in the marginal statement of the names of the parties, the plaintiff had boon described, as administrator of the estate of. James PI. Garner, deceased. The informality was cured by the distinct averment in the body of the complaint that the promissory note, the cause of action, was payable to James H. Garner, and when collected, would be assets of his estate in the hands of the plaintiff. It has been held, that the words “executor,” or “administrator,” not preceded by the particle “ as, ” affixed to tfie name of a party plaintiff or defendant, in the marginal statement in a complaint of the names of the parties, is mere' descriptio personae, and will not support a judgment for or against such party in a representative capacity. But when the averments in the body of the complaint, disclose a cause of action accruing to or against such, party in a representative capacity only, these averments fix the character of the action and the relation of the party to it, whether he be plaintiff or defendant.— Watson v. Collins, 37 Ala. 587 ; Rhodes v. Walker, 44 Ala. 213 ; Graham v. Gunn, 45 Ala. 577. From the body of the complaint, it was plain that the plaintiff was suing on a cause of action accruing to him in his representative capacity— that no individual right was involved — that the contract was made with the intestate while in life, and the right to sue had devolved on the plaintiff by means of his relation as administrator.

The original judgment would have been more regular, if pursuing the complaint, it had been rendered in favor of the plaintiff as administrator. That it was not so rendered was a mere clerical omission, escaping the attention of the parties and the court, and an amendment, producing a correspondence between the complaint and judgment, it was the duty of the court to make on .the application of a proper party.

Affirmed.