May v. Strickland

• Citation: 235 Ala. 482,180 So. 93
• Decision Date: 24 March 1938
• Docket Number: 4 Div. 7.
• Parties: MAY, SHERIFF, ET AL. v. STRICKLAND.
• Court: Supreme Court of Alabama

180 So. 93

235 Ala. 482

MAY, SHERIFF, ET AL. v. STRICKLAND.

4 Div. 7.

Supreme Court of Alabama

March 24, 1938

Appeal from Circuit Court, Houston County; D. C. Halstead, Judge.

Action in trespass and trover by Mrs. S.W. Strickland against A. H. May, as Sheriff of Houston County, United States Fidelity &amp Guaranty Company, and others. From a judgment for plaintiff the named defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and remanded.

L. A Farmer, of Dothan, for appellants.

H. R McClintock, of Dothan, and W. J. Tindle, of Fort Payne, for appellee.

KNIGHT Justice.

Suit in trespass and trover.

The tort, if any, was committed in Houston county, and grew out of the levy made by May, as sheriff of Houston county, upon certain goods and chattels, under executions issued upon judgments theretofore rendered against the plaintiff's husband, in favor of two certain creditors. It was the contention of the plaintiff that the goods and chattels, levied upon and sold under these executions, were her property.

To induce the sheriff to make the levy, the judgment creditors gave May an indemnifying bond with the defendant United States Fidelity & Guaranty Company as surety.

While the suit, as originally filed, named the said May, the execution creditors, and the said United States Fidelity & Guaranty Company as joint defendants, and alleged generally that the tort complained of in each of the two counts of the complaint was committed jointly by the four named defendants, yet the service upon the two execution creditors was quashed, and the trial proceeded against the other two defendants.

The defendant United States Fidelity & Guaranty Company, appearing specially for that purpose, filed a plea in abatement of the action against it. This plea averred: "(1) That at the time the suit was filed and at the time of the service of the summons and complaint, it was a foreign corporation and was not doing business by agent in Houston County, Alabama." The court on motion of the plaintiff struck this plea, and required the said defendant to plead to the merits of the cause.

Section 232 of the Constitution provides that a foreign corporation, having qualified to do business in this state by designating an agent and known place of business, "may be sued in any county where it does business, by service of process upon an agent anywhere in the state."

This constitutional provision, we have held, is restrictive in its operation. General Motors Acceptance Corporation v. Home Loan & Finance Co., 218 Ala. 681, 120 So. 165.

In the case of General Motors Acceptance Corporation v. Home Loan & Finance Co., supra, we held, following the rule announced in the case of Case Threshing Mach. Co. v. McGuire, 201 Ala. 203, 77 So. 729, that, under section 232 of the Constitution, the venue of a tort action against a foreign corporation is in a county where it was doing business when the suit was begun, and not in the county where the tort was committed.

The question of whether it is within the power of a foreign corporation to waive the benefits of this feature of section 232 of the Constitution is not here properly presented, and until properly presented, will not be considered. The question cannot be raised by motion. Waiver or estoppel must be pleaded. In this case the matter should be presented by replication, for in this way authoritative expression of the court may be had on the subject. As the matter now stands, we express no opinion.

Whatever may be the defects, if any, of the plea in abatement filed by the corporate defendant, it was not "prolix, irrelevant, or frivolous, or unnecessarily repeated," and, therefore, the court committed error in striking the same on motion of the plaintiff. Demurrer, and not motion to strike, is the appropriate method of testing the sufficiency of pleas. Motions to strike should be granted only where the pleadings are "unnecessarily prolix, irrelevant, or frivolous, or unnecessarily repeated." Code, § 9458; Sloss-Sheffield Steel & Iron Co. v. Webb, 184 Ala. 452, 63 So. 518; Powell v. Crawford, 110 Ala. 294, 300, 18 So. 302; Lindsay v. Morris, 100 Ala. 546, 550, 13 So. 619; Mobile Electric Co. v. Sanges, 169 Ala. 341, 53 So. 176, Ann. Cas.1912B, 461.

The corporate defendant might well consider, on the remandment of this cause, the propriety of averring in, and as a part of the plea in abatement, that the defendant corporation had qualified to do business in the state and had a designated agent, and a known place of business therein. See Parker v. Central of Georgia R. Co., 233 Ala. 149, 170 So. 333.

Under the evidence, the defendants were not entitled to the general affirmative charge, and, therefore, the court committed no error in refusing this charge.

In brief of coun...