The Montgomery advertiser., 1901-05-30

ALLGOoD V. BANK OF PIEDMOHf. Bill of Review.--Appeal from the Chan
 cery Court of Calhoun.
 l. Bill of review; by whom maintain ed.--A bill of review can be maintained only by parties who have an interest affected by the decree in the original suit and who were injured by the er- TOTS complained of, whatever may have been their right to insist upon such er- rqyS at the original hearing. !. E saHe: 9n ground of newly ,,, discos- ns ,s view on the ground of newly discovered evidence, 1t must not only appear that the additional evidence was not known at the time of the former hearing and could not have been ascertained by the exercise of proper diligence, but the newly discovered evidence, with the other evidence already in the case, must entitle the complainant to a decree dlr- ferent from and more beneficial to com piainant in the bill of review than the one rendered in the original case.
 3. Same; same; case at bar.-ln piil of review, it was averred that the original suit was instituted to enforce Q vendors Hen evidenced by notes, al- legged to have been the property or the complainant therein, and which were in possession of the complainant and introduced in evidence by him. and mar although said notes were executed by the complainant in the bill of review, they were the property of another par ty than the complainant in the original suit, and that this fact was discovered after the decree sought to be reviewed was rendered, and could not have been ascertained by reasonable diligence pre- vious to the rendition of said decree, and that, therefore. the complainant in said original suit was not entitled to maintain said bill. Held: that upon such averrments a bill of review could not be maintained; it not appearing that the complainant therein was en- titled to decree which was beneicially different from that rendered in the orig inal case. +
 f. Same: same; proper prayer in such a biil.-In a bill of review on the ground of newly discovered evidence, a prayer that the complainant be placed in the same situation he would be had said bill not been filed against him." is inn proper. The proper prayer in such a case is that the decree in the original case be reversed, and that the com nlainant in the bill be allow ed to retry the case on the original record and upon the original and newly discovered evidence.
 Affirmed.
 Opinion by Haralson. J.
 vINsGAR BEND LUMBER co. V.
 HAMILTON-BRO SHOE GO. Action of Assumpsit. Appeal from the
 Circuit Court of Washington Coun-
 i. Action against partnership amend ment of complaint; discontinuance. - s,. oc oaUArQl persons, they are described in the com plainant after giving their individual names, as partners doing business under the name of Ca partnership name), the action Is against such per sons individually and against the part nership; and in the trial of the clause, the names of the partners may be stricken out by amendment. leaving the action to proceed against the partner ship by its common firm name. Code, Section 3331); and such amendment does not operate as discontinuance of the cause.
 2. Same; amendment: when error in admission of evidence is without in jury.--Where an action is brought by a plaintiff, described as corporation, against two or more persons as part ners, and the complaint describes such persons by their individual names, and as partners doing business under a common firm name and the individual, but not the partnership, file a plea de- nying the corporate capacity of the plaintiff, and the complaint is subse- quently amended by striking out the names of the individual members and leaving the firm or partnership as sUle defendant, any error in the admission of evidence showing the corporate char acter of the plaintiff is without injury, there being no plea by the partnership denying the plaintiffs corporate ca pacity.
 Affirmed.
 Opinion by Dowdell, J.