Evans Marble Co. v. McDonald & Co. , 153 Ala. 583 ( 1907 )

SIMPSON, J.

— This suit was brought by the appellant against the appellees on a stated account. The original complaint designated the defendants as “D. J. McDonald & Co., a partnership composed of D. J. McDonald, Fred. W. Kearns, and Jackson E. Miles, and D. J. McDonald, Fred. W. Kearns, and Jackson E. Miles individually.” The evidence failing to show that said Kearns and Miles were members of the said firm, “the plaintiff verbally moved the court to permit him to amend his complaint by striking out of his complaint, wherever these names appeared, the names of Jackson E. Miles and Fred. W. Kearns as parties defendant to this suit, and stated as grounds for the motion that, the evidence having failed to show that Kearns and Miles were partners in the partnership of D. J. McDonald & Co., the amendment should be allowed.” The court overruled this motion, and the appellant assigns the same as error. In order that the record may show distinctly what the amendment proposed is, the better practice is to present it in writing. — 1 Ency. PI. & Pr. 639. But, in the absence of the writing, we must take the statement in the bill of exceptions, construing the motion strictly against the party offering it.

The only amendment proposed was to strike out of the complaint the names of said parties “as parties defendant to this suit.” There was no motion to amend the description of the firm of D. J. McDonald & Co. Consequently, if the amendment had been allowed, the suit would have remained against “D. J. McDonald & Co., a partnership composed of D. J. McDonald, Fred. W. Kearns, and Jackson E. Miles, and D. J. McDonald individually.” The evidence confessedly failed entirely to show any indebtedness of a firm so constituted. Hence, if the amendment had been allowed, the evidence Which was admitted, together with all that was excluded, would have failed to make out a prima facie case in favor of the plaintiff:, and the defendants were entitled to have all of the evidence ruled out on their motion. It follows that, if there were any errors in ruling out testimony, it was without prejudice to the plaintiff.

The judgment of the court is affirmed.

Tyson, C. J., and Anderson and Denson, JJ., concur.