#### North Italian Colonial Co. *v.*Janovich-Calafiore Co., *et al.*

*Assumpsit.*

(Decided April 21, 1910.

52 South. 329.)

1. *Appeal and Error; Matters Submitted; Disposition.*— Where a cause is submitted on the merits without reference to motion preliminary thereto, such motions will not be considered although spread on the motion docket of the court, with notice thereof to the adversary party.

2. *Pleading; Parties; Amendment; How Objection Raised.*— Demurrer is not the proper way to raise objection to an amendment introducing a new cause of action or substituting new parties. The proper method is by motion to strike.

Appeal from Monroe Circuit Court.

Heard before Hon. John T. Lackland.

Action by tbe Janovicb-Calafiore Company and others against tbe North Italian Colonial Company. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Tbe suit was commenced in tbe name of P. Janovich and F. Calafiore, partners, under tbe firm name and style of tbe Janovich-C'alalore Company, and sought recovery under tbe common count. By an amendment, subsequently offered, plaintiffs were changed as follows: “P. Janovich and S. Calafiore, partners under tbe firm name and style of Janovicb-Calafiore Company, successors to Florio, Janovich & Co.” — and sought re*202covery under the common count, made with Florio, Janovich & Co., which is alleged to be the property of the plaintiff by assignment from Florio, Janovich & Co.

Barnett & Bugg, for appellant.

The amended complaint was subject to the demurrers *interposed.*— Malum *v. Smithermam,*71 Ala. 563; *Dams A. B. B. Go. v. Mallon,*57 Ala. 168; 1 Ency. P. & P. 515.

McClellan & McDuffie, for appellee.

Counsel discuss the motion made and cite authorities in support of their contention, but in view of the opinion it is deemed unnecessary to set them out. The demurrer did not properly raise the questions presented. Motion to strike was the proper *remedy.*— Moore *v: First Nat. Bank,*139 Ala. 592; *Jamos v. Vickors,*119 Ala. 32; *Springfield v. DeJarnetle,*19 South. 995.

McCLEDLAN, J.

While appellee spread upon the. motion docket of this court, and had notice of the same served upon the adversary, a motion questioning the authority of counsel, who appear for appellant, to prosecute the appeal and to assign errors for appellant, and praying, therefore, for dismissal of the appeal, the records of this court do not show a submission, in any way, of the cause on the motion stated. The submission was on the merits only. We cannot, therefore, consider the matter raised by the motion.

By leave of the court below, an amended complaint was filed, which, appellant insists, introduced a new cause of action and substituted entirely new parties plaintiff. The objection was sought to be taken by demurrer to the amended complaint. Appellant mistook his remedy. It should have been by motion to strike._ *203*Moore v. First Nat. Bank,*139 Ala. 595, 607, 36 South. 777. There was, hence, no error in overruling the demurrer.

The propriety of the allowance of an amendment of the character appellant contends was allowed in this instance was considered in *Ala. Const. Co. v.*Watson, 158 Ala. 166, 46 South. 506.

Let the judgment be affirmed.

Affirmed.

Dowdell, O. J., and Mayfield and Sayre, JJ., concur.