Opinion
4 Div. 831.
March 29, 1932. Rehearing Denied May 10, 1932.
Appeal from Circuit Court, Covington County; Emmet S. Thigpen, Judge.
Assumpsit by the W. E. Duggan Lumber Company against Cobb Woodham. From a judgment for plaintiff, defendants appeal.
Affirmed.
Certiorari denied by Supreme Court in Cobb Woodham v. W. E. Duggan Lumber Co. (4 Div. 648) 225 Ala. 256, 142 So. 585.
A. Whaley, of Andalusia, for appellant.
The record affirmatively showing that no legal plaintiff in the lower court appeared as plaintiff, the judgment was erroneous. Code 1923, § 6149; Lister v. Vowell, 122 Ala. 264, 25 So. 564; Reid Co. v. McLeod, 20 Ala. 576; Lanford v. Patton, 44 Ala. 584; Simmons v. Titche, 102 Ala. 319, 14 So. 786; Moore v. Burnes, 60 Ala. 269; 15 Ency. Pl. Pr. 839, 957.
Frank J. Mizell, Jr., of Florala, for appellee.
Any defect complained of on appeal from a judgment by default must appear of record before it can be assigned as error. Tilson v. Graham, 208 Ala. 312, 94 So. 295; Ortez v. Jewett, 23 Ala. 662. If the name can be said fairly to import either a partnership or an incorporated company, no incapacity to sue is shown. Contorno v. Ensley Lbr. Co., 211 Ala. 211, 100 So. 127; Smiley, Son Co. v. Keith, 3 Ala. App. 354, 57 So. 127. The fact that the character of its existence is not averred does not automatically deprive plaintiff of its existence. 47 C. J. 20; Montgomery R. Co. v. Hurst, 9 Ala. 513. The description could be added by amendment. Manistee Mills Co. v. Hobdy, 165 Ala. 411, 51 So. 871, 138 Am. St. Rep. 73; Ex parte Nicrosi, 103 Ala. 104, 15 So. 507; Lewis Lbr. Co. v. Camody, 137 Ala. 578, 35 So. 126; Lunsford v. Marx, 214 Ala. 37, 106 So. 336; Hall v. First Bank, 196 Ala. 627, 72 So. 171; So. L. I. Co. v. Roberts, 60 Ala. 431; Rosenberg v. Claflin, 95 Ala. 249, 10 So. 521.
The appeal in this case is on the record, and presents but one major question for decision. The suit was brought by W. E. Duggan Lumber Company against these defendants both as a partnership and as individuals. There was no appearance by defendant, and judgment was rendered by default.
It is here insisted that the complaint fails to show on its face a legal plaintiff with capacity to maintain the suit, and that therefore the judgment must be reversed and the cause dismissed.
After judgment has been rendered by default and an appeal is taken to this court, the complaint must be allowed every legitimate intendment or inference that can be brought to bear upon the allegations made. Contorno v. Ensley Lumber Co., 211 Ala. 211, 100 So. 127. And if the complaint contains a substantial cause of action no judgment rendered thereon can be annulled, arrested, or set aside for any matter not previously objected to. Hall et al. v. First Bank of Crossville, 196 Ala. 627, 72 So. 171.
The record in this case shows the plaintiff to be "W. E. Duggan Lumber Company." The word "Corp." had it been added in the complaint, would not have become a part of plaintiff's name, and its omission does not take away the fact of the legal entity of the plaintiff. The contention of the appellant here is the same as that made by appellee in the case of Southern Life Ins. Co. v. Roberts, 60 Ala. 431. In that case the court held that: "In an action by a foreign corporation, if the complaint does not aver the plaintiff's corporate character, the cause should not be struck from the docket on that account, but an amendment should be allowed to supply the defect." To the same effect is the holding in Rosenberg v. Claflin Co., 95 Ala. 249, 10 So. 521; Alabama Conference v. Price, 42 Ala. 47; Lewis Lumber Co. v. Camody, 137 Ala. 578, 35 So. 126. So we hold in this case. The plaintiff sued by its correct name. It failed to include in the complaint words of description. This was an amendable defect, and, not being raised before judgment, cannot now be raised.
We find no error in the record, and the judgment is affirmed.
Affirmed.