Varner v. Barrett

THOMAS, J. There was reversible error in ■ granting the motion to quash the summons issued in the cause of W. A. Varner and F. E. Gandy v. R. C. Barrett. The summons was to “R. C. Barrett to appear * * * to answer, plead or demur to the complaint hereto annexed of W. W. Varner and F. E. Gandy,” issued under the h^nd of the clerk and followed on the same paper the “complaint” in two counts signed by the firm name as “attorneys for plaintiff.” This was sufficient' compliance with section 5296 of the Code to authorize the clerk to issue the summons to the sheriff for the defendant. Code, § 5296; 4 Ency. Pleading & Prac. 590; 31 Cyc. 96; 21 R. C. L. p. 483, § 47. There is analogy in the holding that the character in which a party sues is determined from the body of the declaration, and not from the description of himself in its caption. Tate v. Shackleford’s Adm’r, 24 Ala. 510, 60 Am. Dec. 488. The writ was looked to in aid of the declaration in Gibson v. Land, 27 Ala. 117, 119, 125; Farrow v. Bragg’s Adm’r, 30 Ala. 261; and the summons and caption in aid of the body of the complaint in Lucas v. Pittman, 94 Ala. 616, 10 South. 603; Montgomery County v. Barber, 45 Ala. 237; Wright v. Rice, 56 Ala. 43. In Evans v. Bridges, 4 Port. 348, it was declared that it was not necessary that a complaint have a caption, provided it be filed before judgment rendered. Tunstall v. Donald, 15 Ala. 841; 31 Cyc. 94. The plaintiffs should have been allowed, on due application, to amend their complaint (Lucas v. Pittman, 94 Ala. 616, 10 South. 603; Mahan v. Smitherman, 71 Ala. 563, 565; L. & N. R. R. Co. v. Markee, 103 Ala. 160, 171, 15 South. 511, 49 Am. St. Rep. 21; Hanchey v. Brunson, 181 Ala. 453, 61 *257 South. 258; King v. Gray, 189 Ala. 686, 689, 66 South. 643; Code 1907, § 5369), since it was not unintelligible, and was sufficiently certain to state a cause of action and to call the clerk to the discharge of his duty under the statute, to issue due process to defendant, and service thereof was shown by the record. The judgment of the .circuit court is reversed, and the cause is remanded. Reversed and remanded. ANDERSON, G. J., and McCLELLAN and SOMERVILLE, JJ., concur.