This suit was instituted by the appellee on the 9th day of September, 1919, before federal control of the railways was terminated, against "Director General of Railroads," without naming him. This description of the official character of the party defendant, the cause of action having arisen pending federal control, was sufficient. Hines v. Wimbish, 204 Ala. 350,85 So. 765. Further, there was no objection effectively taken in the trial court to the description of the party defendant. The trial of this cause took place after federal control had ceased, and judgment was rendered against the "Director General of Railroads." Upon the termination of federal control, and before the trial under review was had, the Director General of Railroads, the official character, was superseded, without abating the action, by the liquidating agent, designated by the President, against whom then pending actions, appropriately instituted with the Director General of Railroads as defendant, were authorized to be directed through the amendatory process of substitution. Subdivision (d) of section 206 of the Transportation Act, 41 Stat. p. 462; Currie v. L. N. R. R. Co., 206 Ala. 402, 90 So. 313, 19 A.L.R. 675. The plaintiff should have substituted the liquidating agent for the "Director General of Railroads," an extinct official. Through special requests for instructions, motion for new trial, and motion in arrest of judgment the court was invited to declare, as a matter of law, that there could be no recovery against the "Director General of Railroads," the sole defendant. The court erred in declining to advise the jury, or, erroneously failing to do so, to grant the motion for new trial.
The complaint, a single count, is in form and substance ex contractu. Cent. of G. Ry. Co. v. Camp Hill Co., 208 Ala. 315,94 So. 350, citing earlier apt authority.
In Davis v. Dawkins (Ala. Sup.) 95 So. 188,1 the question now effectively presented was not properly raised in the trial court. Cir. Ct. Rule 34, 175 Ala. xxi.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
1 Ante, p. 45. *Page 298