I think the trial judge was eminently correct in overruling the plea in abatement grounded on a prior action pending. The Alabama doctrine of ignoring a subsequent dismissal of the first suit has no application here.
By virtue of a special appearance and a plea in abatement for misnomer without amendment of the complaint and summons and service of process, the circuit court had no jurisdiction of the defendant in the first suit.1 Or, put another way, until the plaintiff accepted the "better writ," the defendant was estopped from asserting that it was a party to the first suit. Corporate names especially of "new" corporations must be averred, as Coke says, idem nomen syllabis. Mayor of Lynn Regis Case (1612), 10 Co.Rep. 120.
Our general corporation law allows an incorporating group to chose its own aggregate name. Certainly, precision in pleading a corporate name should be desirable if only to furnish the sheriff with the correct appellation for the purpose of execution of process and, if need be, of *Page 367 judgment. Culpeper Ag. Mfg. Soc. v. Digges, 6 Randolph (Va.) 165. See also 1 Bl.Com. 474.
The rule of Interstate Chemical Corp. v. Home Guano Co.,199 Ala. 583, 75 So. 166, has a very narrow scope. In Alabama Power Co. v. City of Scottsboro, 238 Ala. 230, 190 So. 412, Foster J., said:
"In view of such an array of modern authority against our case of Interstate Chem. Co. v. Home Guano Co. [199 Ala. 583, 75 So. 166], we would not be willing to extend it beyond what is there held.
"The former suit here had been dismissed and an appeal had been taken by giving security for costs. This may have been a supersedeas, but the only matter to supersede was execution for the costs.
"We take judicial notice that the appeal has now been disposed of by affirming the decree dismissing that suit on a formal deficiency of pleading, but without prejudice to the right to file another suit. Why the necessity of being forced to dismiss the present suit so as to have the privilege of immediately filing it again? The courts are not here to enforce the frivolous technicalities which have no fixed basis in our jurisprudence. * * *"
I think it a fair conclusion to state that the first suit was not between the same parties because there was no defendant2 to it. Therefore, § 146 of T. 7 would not apply.
This reasoning is strict but its exigence is not oppressive in the light of the Supreme Court's mandate in Alabama Power Co. v. City of Scottsboro, quoted above. The defendant, in the words of the Kentucky Court of Appeals, "was striving, by dilatory pleas, which are not to be favored, to defeat [plaintiff's recovery.]" Frogg's Ex'rs v. Long's Adm'r, 3 Dana 157.
Every day's delay carves into time before the Statute of Limitations could bar recovery. I think the judgment below should be affirmed.