Crimm's Adm'rs v. Crawford

WALKER, J. If the amendment was, in itself, proper, there could be no impropriety in the voluntary suggestion by the court, that it would be allowed. The making such suggestion is a matter which must be left to the discretion of the court trying the cause. It is settled by our previous decisions, that it is not error, for the circuit court to allow an amendment of the pleadings [626] after the evidence has been closed and the argument concluded. — Prater v. Miller, 25 Ala. 320 ; Goldsmith Forcheimer & Co. v. Picard, 27 Ala. 142 ; contra, Watkins v. Canterbury, 4 Porter, 415. Our statute of amendments is very liberal, and is indicative of a legislative intent, that no mere mistake of the pleader, as to the allegations necessary to make a cause of action complete, shall defeat the suit. — Code, §§ 2402, 2403. Under these statutes, we think, there is no limit to the power of amending the allegations of a complaint, except that a party should not be allowed to depart in the complaint entirely from the. process, or to substitute an entirely new cause of action, or to make an entire change of parties. Either of these things would be tantamount to the institution of a new suit, and would hot be an amendment of the old cause of action. To amend the complaint, so -as to show the capacity in which the plaintiff sues, produces-no inadmissible departure from the summons ; for, notwithstanding the summons is, under the decisions of this court, deemed as one in favor of the plaintiff as an individual, (see Agee v. Williams, 27 Ala. 644, and authorities therein cited,) yet it is permissible for the plaintiff, upon general process, to declare as an administrator.- — 1Tidd’s Practice, 450 ; Ohitty on Pleading, 250-251. The amendment of the complaint, -by showing that the plaintiff claimed in his capacity of administrator, does not substitute a new cause of action. The cause of action is really the same. The amendment merely ^ inserts that which is necessary to secure a recovery upon the existing cause of action, which was imperfectly set forth. It is true that there was a complete cause of action set forth in the declaration ; but, if no amendment is to be allowed, where its effect is to vary a cause of action already averred, the power of amendment would be restricted to those cases where the declaration was defective, on demurrer. Such a restriction would be in conflict with the decision, upon a statute certainly not more .liberal than the Code, mExparte.Ilj&n, 9 Ala. 90. The allowance of such an amendment has a precedent, we think, in the following cases : Huff v. Walker, 1 (Carter) Ind. 193 ; 13 U. S. Annual Digest, 35, § 44; Eaton v. Whitaker, 6 Pick. 465 ; Pry v. Evans, 8 Wendell, 530 ; Proctor v. [627] Andrews, 1 Sandf. Sup. Ct. R. 70 ; Smith v. Proctor, 1 ib. 72; 9 U. S. Annual Digest, (1849,) p. 29, § 29 ; Johnson v. P. & M. Bank, 23 Ala. 184; see, also, the authorities in Campbell’s argument in the last case. It is contended, however, that the declaration,as amended, sets forth a cause of action in the plaintiff-as an individual, and not as an administrator, because the words “ as administrator” are mere descriptio persones. The only difference between the complaint in this, and in the case of Agee v. Williams, supra, in which the cause of action was held to pertain to the plaintiff as an individual, is, that in the former the amendment makes the plaintiff, as administrator, claim the negroes sued for ; while, in the latter, the word “ administrator” was only found following the name of the plaintiff, in the description of the case which preceded the complaint. It is contended that no effect can be granted to this difference in the phraseology of the two complaints ; because, in the case of Gibson v. Land, 27 Ala. 117, the words “as trustee,” succeeding the name of the plaintiff in the commencement of the declaration, were regarded as descriptio persones. That case, however, was commenced before the adoption of the Code, in which the process was a writ, and the plaintiff’s pleading a declaration. Under the system applicable to that case, it was necessary to show, by averment, that the title relied upon was that of the cestui que trust for whom the trustee acted ; and in the absence of such an averment, the declaration was held to be one by the plaintiff in his individual capacity. — 1 Saunders on Pleading and Bv. 498, 499 and 500; 2 Ohitty on Pleading, 841, 842 ; Wyatt’s Adm’r v. Rambo, at this term. The complaint in this case is in pursuance to the form prescribed by the Code. Those forms have the force of law. The form of complaint, in actions for the recovery of chattels, is as follows : “ The plaintiff claims of the defendant the following slaves (or other personal property,) viz., &c., (describing it,) with the value of the hire, or use thereof, during the detention, to-wit, from the -day of -.” — Code, page 552. Now it is evident from this form that, under the new system of pleading inaugurated by the Code, all aver-ments as to the title are dispensed with ; and, indeed, that [628] every thing like averment is dispensed with. The only requisite to a good complaint is, to state that the plaintiff claims, and what he claims. It cannot be required of the administrator, who sues in detinue, that he should set forth the title of his intestate, without imposing upon him a duty from which the Code exempts him. Following the form prescribed in the Code, the appropriate mode of distinguishing the suits on the title of his intestate, is to state distinctly that he claims in his capacity of administrator. This is done by stating that the “ plaintiff, as administrator,” &o. To require more would be to impose a duty in pleading, of which the party is. relieved by the Code. The complaint being one under which the plaintiff might recover in his representative capacity, the court properly refused the several charges asked by the appellants. Upon the authority of Agee v. Williams, supra, it is clear that the plaintiff could not have recovered in this case, without the amendment of the complaint; but it does not deny the right of a party to amend the complaint, in the particulars to which the complaint in that case was defective. The judgment of the court below is affirmed.