Steele v. Booker , 205 Ala. 210 ( 1920 )

This action was originally filed by the plaintiff against Gulf, Florida Alabama Railway Company, a corporation, the complaint alleging that the defendant, through its agents or servants, so negligently operated one of its trains as to proximately cause the death of plaintiff's horse. After the original defendant had appeared and filed pleas, the plaintiff, with leave of the court and without objection of the original defendant, amended the complaint by striking out the Gulf, Florida Alabama Railway Company as a party defendant, and substituting therefor the appellant John T. Steele, as receiver of the Gulf, Florida Alabama Railway Company, and adding counts charging that said "John T. Steele, as receiver of the Gulf, Florida Alabama Railway Company, so negligently operated a train as to cause the death of said horse." Steele, as receiver, voluntarily appeared, and without limiting his appearance, submitted a motion to strike the amended complaint from the file, and also a motion to dismiss the case on the grounds that the amendment worked an entire change of parties and substituted a new cause of action. These motions being overruled, he filed the plea of general issue, and on issue thus joined the case was tried, resulting in a judgment for the plaintiff.

The only matters brought for review on this appeal are the rulings of the court on the motion of the substituted defendant to strike the amendment and dismiss the suit.

We think it too clear for argument that the amendment worked an entire change of parties, and introduced a new and independent cause of action. If the servants of the railroad company negligently killed plaintiff's horse, as alleged in the complaint, the railroad was suable therefor. On the other hand, if the receiver or his servants negligently caused the death of the horse, the railroad company is not suable therefor. A., B. A. Ry. Co. v. McGill, 194 Ala. 186, 69 So. 874.

One limitation on the right of plaintiff to amend his complaint under our statute is that the amendment must not effect an entire change of parties or substitute a new and independent cause of action. Rarden Merc. Co. v. Whiteside,145 Ala. 617, 39 So. 576; Vinegar Bend Lbr. Co. v. Chicago Co.,131 Ala. 411, 30 So. 776; Johnson v. Martin, 54 Ala. 271. Therefore the effect of the amendment was a voluntary dismissal or discontinuance of the original suit by the plaintiff (Curtis v. Gaines, 46 Ala. 455; Evans Marble Co. v. McDonald, 142 Ala. 130,37 So. 830), and by an irregular and unauthorized proceeding, the institution of a new suit against the substituted defendant in which he was not compelled to appear without being summoned. However, the court had jurisdiction of the subject-matter, and the substituted defendant by his voluntary appearance gave the court jurisdiction of his person. Gager v. Doe ex dem. Gordon, 29 Ala. 341. He then stood to defend, not in the right of the original defendant, but on his own right and title, and he could set up any valid defense that had accrued to him by lapse of time or otherwise. Nelson v. Goree's Adm'r, 34 Ala. 578. When he voluntarily appeared without limiting his appearance, the fact that he was substituted for another and that the complaint stated a new cause of action was no answer to the cause of action stated in the amended complaint or the right of the plaintiff to sue him thereon, and by such appearance and pleading over he waived the irregularities in the proceedings, and after litigating with the plaintiff on the merits he is in no position to complain. Haas-Phillips Co. v. Lee Edwards, 87 So. 200;¹ Johnson, Adm'r, v. Wren, 3 Stew. 172; Ellis Co. v. Brannon et al.,161 Ala. 573, 49 So. 1034.

If the appearance of the substituted defendant had been coerced by summons or otherwise, and he had pleaded to the jurisdiction, a different question would be presented. Terminal Oil Mill Co. v. Planters' W. H. Co., 197 Ala. 429, 73 So. 18. In such case, if his plea to the jurisdiction had been overruled, his pleading over would not have waived the point taken by the plea. Code 1907, § 5370.

The record shows no reversible error, and the judgment will be affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.

On Rehearing. ANDERSON, C. J., and McCLELLAN, THOMAS, and BROWN, JJ., concur in and adhere to the original opinion and the application is overruled.

SAYRE and SOMERVILLE, JJ., are of the opinion that the points taken by the motion presents matters of abatement, and were not waived by subsequent pleading, and the case should be reversed.

GARDNER, J., not sitting.

¹ Ante, p. 137.