Opinion
6 Div. 824.
January 12, 1928.
Appeal from Circuit Court, Jefferson County; William M. Walker, Judge.
Stokely, Scrivner, Dominick Smith, of Birmingham, for appellant.
There is no valid judgment against N.W. Remond within the meaning of Code, §§ 8376-8377. Globe Indemnity Co. v. Martin, 214 Ala. 646, 108 So. 761; Floyd v. Lamar, 13 Ala. App. 504, 69 So. 227. The judgment against William R. Remond could not be enforced against N.W. Remond. Code 1923, § 9514; Clinton M. Co. v. Bradford, 200 Ala. 308, 76 So. 74; Ory-Cohen v. Taylor, 208 Ala. 520, 94 So. 525; May v. Clanton, 208 Ala. 588, 95 So. 30; Cooper v. Jacobs, 82 Ala. 411, 2 So. 832; Barrett v. Brownlee, 190 Ala. 613, 67 So. 467. Parol evidence is not admissible to change the judgment unless sufficient matter appears of record to justify the change. Code 1923, § 9514; De Loach v. Robbins, 102 Ala. 288, 14 So. 777, 48 Am. St. Rep. 46. The judgment could not be amended nunc pro tunc. Wilmerding v. Corbin Banking Co., 126 Ala. 268, 28 So. 640; Carter v. Smith, 142 Ala. 414, 38 So. 184, 110 Am. St. Rep. 36; Gardner v. State, 21 Ala. App. 388, 108 So. 635; Merrimac Mfg. Co. v. Hearn, 16 Ala. App. 507, 79 So. 268; Code 1923, § 7855. Cross-complaint is not authorized to prosecute either original or cross-bill against appellant. Code 1923, §§ 8376, 8377; Goodman v. Georgia Life Ins. Co., 189 Ala. 130, 66 So. 649; Hollings v. Brown, 202 Ala. 504, 80 So. 792.
Mullins Jenkins, of Birmingham, for appellee Yeates.
Remond waived the defect in the process in the suit at law by appearing and filing demurrer, and judgment rendered against him is valid and binding. Mobile, etc., R. Co. v. Yeates, 67 Ala. 164; Lehman-Durr Co. v. Warner, 61 Ala. 455; Naftel D. G. Co. v. Mitchell, 212 Ala. 32, 101 So. 653. Defendant, sued by a wrong name, but with due process upon him, who fails to plead the misnomer and suffers judgment against him in such name, may be connected with the judgment by proper averments, and will be bound by it. Gill v. More, 200 Ala. 511, 76 So. 453; Naftel D. G. Co. v. Mitchell, supra.
Leader Ullman and Bradley, Baldwin, All White, all of Birmingham, for appellee Augusta Friedman's Shop, Inc.
Respondent Remond waived defect in process, and is bound by the judgment. Mobile, etc., R. Co. v. Yeates, 67 Ala. 164; Lehman-Durr Co. v. Warner, 61 Ala. 455; Naftel D. G. Co. v. Mitchell, 212 Ala. 32, 101 So. 653. Equity having jurisdiction of the parties will adjudicate the entire controversy. Interstate B. L. Asso. v. Stocks, 124 Ala. 109, 27 So. 506; Williams v. Nelson, 228 Mass. 191, 117 N.E. 189, Ann. Cas. 1918D, 538; Davenport v. Bartlett, 9 Ala. 179; Winkleman v. White, 147 Ala. 481, 42 So. 411; Enterprise Lbr. Co. v. First Nat. Bank, 181 Ala. 388, 61 So. 930; Mallory S. S. Co. v. Druhan, 17 Ala. App. 365, 84 So. 876; Miller v. Garret, 35 Ala. 96; Couch v. Terry, 12 Ala. 225.
With respect to the bill of complaint, appellant's insistence is that the showing of a judgment for complainant against Wm. R. Remond, even with the showing that the real person, who was sued and served with process, and who actually appeared and defended the suit, without objection because of the misnomer, was N.W. Remond, is not sufficient to fasten liability upon the appellant company as insurer of N.W. Remond, under the provisions of sections 8376 and 8377 of the Code. These statutes impose an absolute liability upon the insurer when the loss or damage for which the insured is liable occurs, and authorize a suit in equity by the injured plaintiff in judgment against the defendant and the insurance company, to have the insurance money applied to the satisfaction of the judgment, if the judgment has remained unsatisfied for 30 days after its rendition. Globe Indemnity Co. v. Martin, 214 Ala. 646, 108 So. 761; Lorando v. Gethro, 228 Mass. 181, 117 N.E. 185, 1 A.L.R. 1374.
Under the allegations of the bill of complaint, as amended, the judgment obtained against Wm. R. Remond was unquestionably a good judgment against N.W. Remond, because N.W. Remond was the person intended to be sued, and the person actually served with the process, and the person against whom the judgment was actually rendered without any objection from him that he was misnamed in the complaint. To this conclusion the authorities are overwhelming, if not unanimous (33 Corp. Jur. 1200, § 132), and our own decisions are clearly and specifically in accord (Naftel Dry Goods Co. v. Mitchell, 212 Ala. 32, 101 So. 653; Tarleton v. Johnson, 25 Ala. 300, 310, 60 Am. Dec. 515; M. M. Ry. Co. v. Yeates, 67 Ala. 164; Lehman, Durr Co. v. Warner, 61 Ala. 455).
As observed in the last-cited case, "When it becomes necessary to aver or plead the judgment, the real party, notwithstanding the mistaken name, may be connected with it by averment of his proper name."
If such a judgment is binding on the misnamed defendant in his own proper name, when duly identified, it is certainly binding on his insurer, as seems to be fully conceded by counsel for appellant.
We are not concerned here with the principles that restrict the right of a plaintiff to amend the record of his judgment nunc pro tunc, as argued by counsel for appellant, for such an amendment is not proposed, nor is it at all necessary to the attainment of the relief sought by the complainant in this bill. The demurrer to the bill, as amended, was properly overruled.
The only other question presented is upon the respondent company's demurrer challenging the right of its correspondent, the Shop, Inc., to maintain its cross-bill against the demurrant.
As to this it will be sufficient to say that, although the statute (Code, § 8377) gives no right of suit against the insurance company in favor of one of several joint defendants in judgment who is not insured under the contract of insurance, even when the insured defendant is, as to his codefendants, primarily liable, yet, when it appears, as here, in a suit like this, that the insured defendant is primarily liable to the plaintiff, that he had contracted with his codefendant to include him as a beneficial party in the protection of the policy, and that the insurance company voluntarily assumed and conducted the entire defense of the suit in behalf of both defendants, we think that the uninsured defendant shows an equitable interest in the contract of insurance, and an equitable right to have it applied to the satisfaction of the joint judgment. We do not mean to hold that this cross-complainant could maintain an original bill for that purpose, for that question is not before us; but, the parties being before the court under the original bill, all subordinate and dependent equities may and should be settled in this suit, so that the various rights of the parties, growing out of the main issue and subject-matter, and related thereto, may be finally determined. Kimball v. Cunningham Hdw. Co., 197 Ala. 631, 73 So. 323; Hause v. Hause, 57 Ala. 262; Ware v. Russell, 70 Ala. 174, 45 Am. Rep. 82; Price v. Carney, 75 Ala. 546. We think the cross-bill is not subject to any of the grounds of the demurrer.
Finding no error in the rulings of the trial court, the decree appealed from will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.