Vinegar Bend Lumber Co. v. Hamilton-Brown Shoe Co.

DOWDELL, J. This was an action upon the common counts, brought by the Hamilton Brown Shoe Company, .a corporation., In the complaint the parties to the cause are styled as the “Hamilton Brown Shoe Co., a corporation, v. Noel E. Turner, Herbert Turner and Verda E. Turner, partners doing business under the name of Vinegar Bend. Lumber Co.” In subsequent pleading's, both by plaintiffs and defendants, the parties are styled in the captions of the pleadings as “Hamilton Brown Shoe Co. v. Vinegar Bend Lumber Co.” That the pleadings, including their captions, may be looked to to determine who are the defendants in an action, is a question that has been settled by this court in the following cases: Blackman v. Moore-Handley Hardware Co., 106 Ala. 461; Burdeshaw & Co. v. Comer Co., 108 Ala. 618; Bolling & Son v. Speller, 96 Ala. 270. Under the description shown by the pleadings and their captions in this case, the Vinegar Bend Lumber Co., as a partnership, is made a party defendant. See Baldridge v. Eason, 99 Ala. 517; Dollins et al. v. Pollock & Co., 89 Ala. 351, and authorities cited in the last named case. Under the authority of McCaskey & Ratcliff v. Pollock & Co., 82 Ala. 174, it was permissible for the plaintiff to amend his complaint by striking out the names of the individual partners and leaving the firm or partnership as sole defendant. See also section 3831, Code of 1896. This amendment did not operate a discontinuance of the cause, and the motion of the defendant to enter a discontinuance on account of the amendment was properly overruled. The plea denying the corporate capacity of the plaintiff was the individual plea of Noel E. Turner and Herbert Turner. No such plea was filed by the Vinegar Bend Lumber Co., the ■ sole defendant of record after the amendment. There being no plea by this defendant denying the corporate capacity by which the plaintiff sued, there was no necessity of any proof as to its corporate entity. Consequently there could be no injury arising from error, if any existed, in the admission of the certified copy of certificate of incorporation and the evidence as to the Missouri statute. There was no conflict in the evidence offered in proving defendant’s debt or demand, and no [275] error was -committed- by the court in giving the, affirmative charge at the instance-of the plaintiff.., We find no error in the record, and the judgment is affirmed. . , . ,