Kirby v. Puckett

Kirby v. Puckett. Equity Proceeding. (Decided April 5th, 1917. 75 South. 6.) Appeal and Error; Remand; Pleading; Amendment; Statute. — Under Code 1907, section 3126, .providing that amendments to bills must be allowed at any time before final decree, by striking out or adding new parties, and to meet any state of evidence which will authorize relief, the time limit to the right of amendment is the rendition of the final decree, and amendment to a bill, proper in itself, within the lis pendens, may be allowed even after reversal and remand on appeal. Appeal from Lawrence Chancery Court. Heard before Hon. James E. Horton, Jr. Bill by S. E. Puckett against Monroe Kirby. Decree allowing amendment and respondent appeals. Affirmed. G. O. Chenault for appellant. D. C. Almon for appellee. [MAJORITY — .THOMAS, J.] .THOMAS, J. The decree of the chancellor overruling the demurrer, to the bill as last amended is free from error. The question then recurs to the allowance of the amendment by the chancellor, on complainant’s motion, at the February term, 1916. The decree of the chancellor sustaining the demurrer to the bill was of date October 12, 1912, It allowed complainant 30 days from the enrollment of the decree within which to amend her bill of complaint, but no amendment was offered within the time allowed. Thereafter, at the next term of the chancery court (February 28, 1916), on motion of complainant, she was allowed to amend her bill, whereupon she filed the amendment in question. The time limit to the right of amendment is the rendition of the final decree.—Code 1907, § 3126; Pitts v. Powledge, 56 Ala. 147; Gilmer v. Wallace, 75 Ala. 220; Ex parte Ashurst, 100 Ala. 573, 13 South. 542; Wilkinson, Banks & Co. v. Buster, 115 Ala. 580, 22 South. 34; Vandeford v. Stovall, 117 Ala. 344, 23 South. 30. Amendment of a bill proper in itself, within the lis pendens, may be allowed even after reversal and remandment on appeal. It is only after a final decree that a motion to amend comes too late.—Beatty v. Brown, 85 Ala. 209, 4 South. 609. The decree of the chancellor is affirmed. Affirmed. Anderson, C. J., and Mayfield and Somerville, JJ., concur.