Steiner Bros. v. Stewart , 134 Ala. 568 ( 1901 )

TYSON, J.

—This suit originated in a justice court, and was brought against, “Sig Steiner’ and Bernard Steiner doing business as Steiner Bros, and Ales Dallas.” This is shown both by the summons and the caption to the complaint. Before trial in justice court, plaintiff amended lier coniiplaint by striking out Dallas as a party defendant, leaving it as a complaint against the two named!-Steiners doing-business as Steiner Bros. After appeal to the. city court, she again amended her complaint, the effect of which was to eliminate as’ parties defendants Sig and Bernard Steiner doing business as Steiner Bros, and to substitute in their stead as a party, Steiner1 Brothers, a corporation.

The point was made in the court below, by proper objection, and is urged here that the amendment wrought an entire change of parties. The suit was. clearly, one against the. two Steiners as individuals and not against Steiner Brothers; a partnership., if it be conceded! that the averment sufficiently shows that Sig and Bernard Steiner were partners doing business under that firm name. — Compton v. Smith, 120 Ala. 233; Baldridge v. Eason, 99 Ala. 516; Blackman v. Moore-Handley Hardware Co., 106 Ala. 458; Bolling v. Speller, 96 Ala. 269; Ladiga Saw-Mill Co. v. Smith, 78 Ala. 108; Shapard v. Lightfoot, 56 Ala. 506. We have then to deal with an amendment that eliminates the only two parties defend- and and inserts in their place an entirely different party, a corporation. It- is. clear this cannot be clone. For the words after the names. “Sig Steiner* and Bernard Steiner,” the only parties sued, to-wit: “doing business as Steiner Bros.” were mierely descriptio personae of Sig and Bernard. Steiner, and, therefore, not material. The effect of the amendment was, as we have said, to strike out. the only parties sued and leave the description — the immaterial part — andl to* add an entirclv new party defendant,. The case, therefore, is not within the principles as applied ini Ex parte Nicrosi, 103 Ala. 104, where descriptive words were eliminated by amendment and other descriptive words*' were substituted, but directly within, the principles declared in Davis Ave. R. R. Co. v. Mallon, 57 Ala. 168; Western R'y of Ala. v. McCall, 89 Ala. 375; Vinegar Bend Lumber Co. v. Chicago Title & Trust Co., 131 Ala. 411, and Hallmark v. Hopper, 119 Ala. 78.

Reversed' and remanded.