North Italian Colonial Co. v. Janovich-Calafiore Co.

McCLEDLAN, J. While appellee spread upon the. motion docket of this court, and had notice of the same served upon the adversary, a motion questioning the authority of counsel, who appear for appellant, to prosecute the appeal and to assign errors for appellant, and praying, therefore, for dismissal of the appeal, the records of this court do not show a submission, in any way, of the cause on the motion stated. The submission was on the merits only. We cannot, therefore, consider the matter raised by the motion. By leave of the court below, an amended complaint was filed, which, appellant insists, introduced a new cause of action and substituted entirely new parties plaintiff. The objection was sought to be taken by demurrer to the amended complaint. Appellant mistook his remedy. It should have been by motion to strike._ [203] Moore v. First Nat. Bank, 139 Ala. 595, 607, 36 South. 777. There was, hence, no error in overruling the demurrer. The propriety of the allowance of an amendment of the character appellant contends was allowed in this instance was considered in Ala. Const. Co. v. Watson, 158 Ala. 166, 46 South. 506. Let the judgment be affirmed. Affirmed. Dowdell, O. J., and Mayfield and Sayre, JJ., concur.