Opinion
8 Div. 38.
October 11, 1928.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
John W. Brown, of Boaz, for appellant.
It was error to allow amendment of the complaint; same effecting an entire change of parties. Rarden Merc. Co. v. Whiteside, 145 Ala. 617, 39 So. 576; Johnson v. Martin, 54 Ala. 271; Sov. Camp v. Dennis, 205 Ala. 316, 87 So. 620; Rice v. Davidson, 211 Ala. 693, 101 So. 604; Evans Marble Co. v. McDonald Co., 142 Ala. 130, 37 So. 830; Curtis v. Gaines, 46 Ala. 455; Vinegar Bend Lbr. Co. v. Chicago, etc., Co., 131 Ala. 411, 30 So. 776. Service of summons from a justice court upon the superintendent of insurance is not authorized.
Thos. E. Orr, of Albertville, and W. G. Dooly, of Boaz, for appellee.
The amendment was permissible. Southern L. I. Co. v. Roberts, 60 Ala. 431; West. Ry. v. Sistrunk, 85 Ala. 352, 5 So. 79; Rosenberg v. Claflin, 95 Ala. 249, 10 So. 521; Ala. Conference, etc., v. Price, 42 Ala. 47. Defendant waived any irregularity in the summons by his general appearance. 4 C. J. 1333.
The judgment entry recites that:
"On this the 20th day of January, 1926, come the parties, by attorneys, and the plaintiff asks leave of the court to amend his complaint, by averring that the defendant 'Inter-Ocean Casualty Company is a corporation.' Defendant objects to plaintiff being allowed to amend complaint as stated, and the court overrules said objection, and to this ruling of the court the defendant excepts. Plaintiff further asks leave of the court to strike out T. E. Gardner as a party defendant, and this case is continued."
This recital shows a general appearance by the defendant, appellant here, and its motion to "quash the summons and strike the complaint," filed on the 16th day of July, 1926, because of alleged irregularities in the service of summons and complaint, was properly overruled; these irregularities being waived by the general appearance.
There was no error in allowing the amendment to the complaint, so as to aver the corporate character of the defendant. Code 1923, § 9513; Southern Life Ins. Co. v. Roberts, 60 Ala. 431; Western Ry. Co. v. Sistrunk, 85 Ala. 352, 5 So. 79; F. S. H. Rosenberg v. H. B. Claflin, 95 Ala. 249, 10 So. 521.
This disposes of the assignments of error insisted upon in argument.
Affirmed.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.