Opinion
4 Div. 23.
February 8, 1923. Rehearing Denied May 24, 1923.
Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
Farmer, Merrill Farmer, of Dothan, for appellant.
Amendments which would divest a bill of all its original defendants, and make a new case against new defendants, cannot be allowed. Leggett v. Bennett, 48 Ala. 380; Rapier v. Gulf City Paper Co., 69 Ala. 476.
Martin Crawford and B. F. Reid, all of Dothan, Sollie Sollie, of Ozark, and Steiner, Crum Weil, of Montgomery, for appellee.
The amendment made did not substitute a new case or amount to a departure from the original bill, but the effect was to add new parties defendant and pray for substantially the same kind of relief contemplated in the original bill. The effect of such an amendment is merely to enlarge the scope of the same suit as to subject-matter and parties. Collins v. Stix, 96 Ala. 338, 11 So. 380; Vandeford v. Stovall, 117 Ala. 344, 23 So. 30; Code 1907, § 3126.
It is a general rule in a court of equity that an original and amended bill are to be regarded simply as an entire bill, consisting in fact of but one record (Adams v. Phillips, 75 Ala. 461; Ray's Adm'r v. Womble, 56 Ala. 32, 37); and when a complainant intends to proceed entirely upon an amended bill, he should have the original bill stricken, failing in which "the two together are to be taken as constituting the bill of complaint in the cause" (Brackin v. Newman, 121 Ala. 311, 26 So. 3).
There is nothing in either the introductory recital or in the substance of the last amendment to the bill of complaint which indicates any purpose to abandon the original bill and proceed upon the amendment alone. On the contrary, the amendment was upon its face a mere addition to the original bill as first amended, for it refers in terms to the lands "described in the original bill," and requires the respondents "to answer the allegations of the bill in this cause as heretofore and herein amended." It is worthy of note also that the paragraphs of the amendment are numbered A1 to A7, indicating the idea of addition and not substitution.
There is a palpable difference between "amending a bill as follows," and "amending a bill so as to read as follows," or "filing an amended bill as follows." In the two latter cases, the contrary not appearing, it might very well be inferred that the amended bill thus presented is intended as a complete substitute for the original bill; but amending the bill properly means no more than adding to or changing it within its original structure.
There is no merit in appellant's contention that the last amendment operated as an abandonment of the original bill as first amended, and thereby effected a complete change of parties respondent. The amendment in question brings in several new parties respondent, with the allegation that they claim an interest in the lands alleged to have been fraudulently conveyed to W. E. Middlebrooks, and that complainants do not know the nature, character, or extent of their claim, but make them parties in order that they may propound their claim and have it adjudicated.
If this allegation does not sufficiently show that those respondents are interested in the subject-matter of the suit, and are therefore proper parties, it seems clear that that objection is available to them alone, and cannot be complained of by the appellant, Middlebrooks.
The same is true of the contention that the bill, as amended, shows no right to relief against Mrs. M. E. Cheshire, who is not complaining of the action of the trial court in overruling her demurrer, and is not appealing from the judgment. However she might be affected by that adverse ruling, it was not prejudicial to this appellant, and is not available to him here.
We find no error prejudicial to appellant, and the decree of the circuit court will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.