North Birmingham Lumber Co. v. Sims & White

DENSON, J. — This is an action of assumpsit, commenced on the 28th day of November, 1906, against the Mitchell Lumber Company, a corporation. On the call of the case for trial on the 7th day of November, 1907, the plaintiffs moved the court that the cause should proceed against the North Birmingham Lumber Company, a corporation, instead of the Mitchell Lumber Company. This motion was based upon the ground that the Mitchell Lumber Company had changed its name to the North Birmingham Lumber Company. In support of the motion it was shown that, in accordance with the statute in such cases made and provided, the name of the defendant was changed from Mitchell Lumber Company to North Birmingham Lumber Company in April, 1906, and upon this proof being made the court ordered and adjudged that the cause should proceed against North Birmingham Lumber Company. The change made in the name of the defendant had no more effect upon its identity as a corporation than a change of the name by a natural person has upon his identity; neither did it effect its rights, nor lessen or add to its obligations [599] 1 Morawetz on Private Corp., 354; Lomb v. Pioneer Saving & Loan Co., 106 Ala. 591, 17 South. 670. The complaint shows that the contract, the foundation of the suit, was entered- into with plaintiffs by the corporation under its original name; and, notwithstanding the action was commenced after the change in name of the defendant was effected, this constituted no legal obstruction to the allowance of the amendment, nor to the order of the court that the cause should proceed against the North Birmingham Lumber Company. While the amendment or order changed the name, it did not, according to the authorities supra, work a change in the party defendant. The defendant, under its new name, was the same entity that made the contract and was originally sued. The effect of the order was to amend the summons and complaint, so as to make the action one against the defendant in its new or changed name. The court holds that there is no error in the order made by the trial court, nor in its judgment overruling the demurrer to the complaint. —Ex parte Nicrosi, 103 Ala. 104, 15 South. 507; Singer, etc., Co. v. Greenleaf, 100 Ala. 372, 14 South. 109; Merriam v. Wolcott, 61 How. Prac. (N. Y.) 377. For the purpose of showing the change in the corporate name of defendant from Mitchell Lumber Company to that of North Birmingham Lumber Company, the plaintiff offered as evidence the record of the proceedings in the probate court. The defendant in the court below specifically waived, the point that a certified copy was not offered, but made a general, undefined objection to the record offered. Record of such proceedings is required to be kept in the office of the judge of probate; a certified transcript having been waived, the record Avas competent evidence, and the court committed no error in admitting the record offered against the general objection made thereto. Code 1.896, §§ 1816, 1819; Stevenson v. Moody, 85 Ala. 33, 4 South. 595. [600] Even granting that the book kept by “Jack” was a book of original entry, kept by him in the usual course of business, yet the evidence shows that the defendant was receiving lumber from other parties than the plaintiffs; and it was not shown that “Jack” knew where the lumber came from, nor was there any evidence tending to show that the entries made in the book were correct. “Jack” was not shown to be dead nor insane, nor beyond the jurisdiction of the court. On the authority of the case of Bolling v. Fannin, 97 Ala. 619, 12 South. 59, it must be held that the book was properly excluded. The seventh ground of error is in this language: “The court erred in giving each of the written charges asked by plaintiffs, and which charges are copied, but not numbered, on page 9 of this transcript. Each one of them separately are assigned as erroneously given.” Even if this assignment were sufficient to bring to the attention of the court the matters designated (Williams v. Coosa Co., 138 Ala. 673, 33 South. 1015; Milner, etc., Co. v. Wiggins, 143 Ala. 132, 38 South. 1010), yet page 9 of the transcript is no part of the bill of exceptions, and charges not set out in the bill of exceptions — although they may appear elsewhere in the record — will not be reviewed. —Nuckol's Case, 109 Ala. 2, 19 South. 504; Southern Railway Co. v. Jones, 132 Ala. 437, 442, 31 South. 501; Alabama, etc., Co. v. Wagnon, 137 Ala. 388, 34 South. 352; Lunsford v. Bailey, 142 Ala. 319, 38 South. 362; Milner, etc., Co. v. Wiggins, supra. We find in the bill of exceptions (on pages 27 and 28 of the record) two of the four charges that are set out on page 9; but the court holds that the trial court committed no reversible error in giving these. No error has been found in the record, and the judgment of the trial court is affirmed. Affirmed. Tyson, O. J., and Simpson and Anderson, JJ., concur.