COPELAND v. DIXIE CONST. CO., 216 Ala. 257 (1927)

COPELAND v. DIXIE CONST. CO., 216 Ala. 257 (1927)
113 So. 82


6 Div. 898.Supreme Court of Alabama.
May 26, 1927.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.Page 258

M. B. Grace, of Birmingham, for appellant.

The plaintiff may add new parties defendant by amendment, and may strike out the original parties defendant without working a discontinuance as to the new parties defendant, and may take judgment against those not stricken as the liability may be disclosed by the evidence. Code 1923, ? 5718; Grigsby v. Barton County, 169 Mo. 221, 69 S.W. 296.

Cabaniss, Johnston, Cocke Cabaniss and Brewer Dixon, all of Birmingham, for appellee.

The statute of amendments does not authorize an entire change of parties. The original party defendant having been stricken, there was an entire change of parties, and the motion for discontinuance was properly granted. Rarden Mer. Co. v. Whiteside, 145 Ala. 617, 39 So. 576; Roth v. Scruggs, 214 Ala. 32,106 So. 182.


With respect to the statutory right to amend a complaint “by striking out or adding new parties plaintiff, or by striking out or adding new parties defendant” (Code 1852, ? 2403), it was held in Leaird v. Moore, 27 Ala. 326 (1855), that no amendment was authorized which worked a complete change of parties. The original statute has been amplified in some respects, but as to striking out or adding parties it has remained unchanged through successive codifications down to the present time. Code 1923, ? 9513.

The original construction has been uniformly adhered to by this court, and the restriction stated is as fully a part of the statute as if it were expressed therein. Rarden Merc. Co. v. Whiteside, 145 Ala. 617, 39 So. 576, citing earlier cases; Jones v. Engelhardt, 78 Ala. 505; Crawford v. Mills, 202 Ala. 62,79 So. 456; Steele v. Booker, 205 Ala. 210, 87 So. 203; Thomas v. Saulsbury, 212 Ala. 245, 102 So. 115; Roth v. Scruggs, 214 Ala. 32, 106 So. 182.

And it is settled that successive amendments whereby a new party is first added, and then the original party is stricken out, discontinues the cause as effectually as if both results were accomplished at once by a single amendment. Rarden Merc. Co. v. Whiteside, supra; Roth v. Scruggs, supra; Pickens v. Oliver, 32 Ala. 626.

The rule of these decisions, unless changed by statute, undoubtedly governs the instant case. This is conceded by counsel for appellant. The insistence, however, is that this rule was in fact changed by the Act of September 8, 1915, amending section 2502 of the Code of 1907 (now section 5718 of the Code of 1923), and that the decisions since that time have taken no account of this amended statute.

Prior to the amendment of 1915, this statute simply authorized the plaintiff, in a suit against two or more persons on any joint or joint and several contract or cause of action, to discontinue as to defendants not served, and to proceed to judgment against the others. The amended statute provides that the plaintiff, in such an action against one or more persons, “may at any time amend the summons and complaint by striking out, or adding parties plaintiff or defendant, whether served or not, and such amendment shall not work a discontinuance as to any defendant not stricken out; but the plaintiff may recover such judgment as he may be entitled to against any one or more of the defendants.”

We do not think the Legislature intended, by these changes in the statute relating to discontinuances, to affect the statute regulating amendments, nor, as insisted by counsel for appellant, to destroy the rule declared in Rarden Merc. Co. v. Whiteside, 145 Ala. 617, 39 So. 576. Had they so intended, they would certainly have amended section 5367 of the Code (now section 9513, Code 1923), which the Whiteside and earlier cases had construed. In the enactment ofPage 259
statutes a Legislature will not be presumed to have intended to contradict itself, and two statutes contemporaneously enacted will be construed as consistent with each other, if such a construction be reasonably possible.

Construing section 5718 in connection with section 9513, and looking to the distinct history and operation of each of them, we think that the above-quoted part of section 5718 means merely that, where the action is against several defendants and one or more of them has been stricken out by amendment, there is no discontinuance as to the one or more remaining defendants, and that, as to him or them, the plaintiff may proceed to judgment. The amended statute is awkwardly constructed, and some of its parts are not mutually adaptable, the part quoted being, by its very terms, necessarily restricted in its application to the single case where one or more original parties defendant have been stricken and one or more original parties remain.

Our conclusion is that section 5718 is without application to this case, and the ruling of the circuit court in granting the discontinuance as to appellee will be affirmed.


ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.