Abraham Bros. v. Southern Ry. Co.

• Decision Date: 20 December 1906
• Citation: 42 So. 837,149 Ala. 547
• Parties: ABRAHAM BROS. v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

42 So. 837

149 Ala. 547

ABRAHAM BROS. v. SOUTHERN RY. CO.

Supreme Court of Alabama

December 20, 1906

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by Abraham Bros. against the Southern Railway Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

This was an action begun by appellants against the appellee in the city court of Montgomery to recover damages for a failure to deliver certain live stock. The complaint was filed and summons issued thereon on December 15, 1904, and service was made upon an agent of the defendant in Birmingham on December 16, 1904. On January 20, 1905, the defendant appeared specially and filed a verified plea in abatement, to which a demurrer was sustained. On February 17, 1905, the cause was continued by agreement, and on April 12, 1905, defendant filed an amended plea in abatement, to which demurrers were filed and sustained, with leave to amend the plea.

On December 19, 1905, an amended plea in abatement was filed, as follows: "The defendant appearing specially for the purpose of this plea, and for no other purpose, says that this court ought not to have or take cognizance of this suit because at the time of the commencement of this suit, and at the time the summons issued therein was attempted or pretended to be made upon it, this defendant, a corporation organized under the laws of the state of Virginia, had filed in the office of the Secretary of State of the state of Alabama an instrument in writing in accordance with the provisions of the laws and Constitution of the state of Alabama, designating Marion F. Richey its agent, and the city of Birmingham as its principal place of business, in the state of Alabama; that defendant was at the time aforesaid and now is, a common carrier and operates a line of railroad within and without the state of Alabama, but no part of defendant's line of railway runs through or within the county of Montgomery, Ala., and defendant does no business by agent in said county, except that it has a freight soliciting agent in the city of Montgomery, in said county, employed by defendant to solicit shipments of freight to and from the territory in and around Montgomery, Ala., to be routed by the shippers so that the same will pass over defendant's line beyond said county, and said soliciting freight agent has no authority to make contracts for the defendant, and does not collect any payment for transportation of freight by defendant, and does not receive or deliver such shipments but his sole duties are to solicit business as above set out and other duties of a similar character. And defendant has also a traveling passenger agent, with an office in the city of Montgomery, whose sole duties are to solicit passenger traffic from the territory around Montgomery, Ala., so that the same will pass over defendant's lines beyond Montgomery county, Ala.; but said agent has no authority to sell tickets for such transportation over defendant's lines, and his sole duties are to solicit traffic as above set forth, and to furnish information about defendant's lines and its connections, and to advertise said road, and duties of a similar character. Wherefore defendant prays judgment whether it ought to be required to appear and answer further in said suit." Plaintiff moved to strike this plea, because not filed within the time allowed for pleading and this motion was overruled.

The plaintiff then demurred to the plea: "(1) Said plea does not deny that the defendant, at the time this suit was brought, was doing business in the city of Montgomery, and in Montgomery county, Ala. (2) Said plea shows that the defendant is properly sued in this county. (3) Said plea shows that the defendant is liable to suit in Montgomery county, upon the cause of action stated in the complaint. (4) Said plea shows that this court has jurisdiction of the defendant in this action upon the cause of action...