Allen v. Zickos

• Decision Date: 11 August 1953
• Docket Number: 8 Div. 992
• Citation: 68 So.2d 841,37 Ala.App. 361
• Parties: ALLEN v. ZICKOS.
• Court: Alabama Court of Appeals

Page 841

68 So.2d 841

37 Ala.App. 361

ALLEN v. ZICKOS.

8 Div. 992.

Court of Appeals of Alabama.

Aug. 11, 1953.

Rehearing Denied Dec. 1, 1953.

Bradshaw, Barnett & Haltom and E. B. Haltom, Jr., Florence, for appellant.

Mitchell & Poellnitz, Florence, and Jack Reed, Tuscumbia, for appellee.

PRICE, Judge.

T. R. Zickos instituted suit in the Law and Equity Court of Colbert County to recover damages to his automobile resulting from a collision with defendant's car at the intersection of Atlanta Avenue and Seventh Street in Sheffield.

The cause was tried by the court, sitting without a jury. A judgment was rendered for plaintiff for $291, and defendant appeals.

On March 16, 1950, defendant filed plea of the general issue. On April 12th she filed plea of recoupment, claiming $35,000 as damages, against plaintiff for personal injuries and property damage sustained by her in the same automobile collision, and on the same day she filed a motion for a transfer of the cause of action to the Circuit Court of Colbert County so that it might be consolidated in that court with a personal action there pending, filed against T. R. Zickos, which arose out of the same automobile collision involved here. The action of the court in overruling the motion to transfer is made the basis of appellant's first assignment of error.

The Colbert Law and Equity Court was established by an act of the legislature, approved June 27, 1947, Loc.Laws 1947, p. 25. The act provides that said court 'shall have and exercise concurrent jurisdiction now conferred or which hereafter may be conferred upon the several circuit courts of the state, provided, however, that in cases at law, the amount involved, exclusive of interest and costs, does not exceed $3000.00.'

Section 12 of said act provides in pertinent part as to transfer of cases, 'all civil cases now or hereafter pending in the Circuit Court of Colbert County, Alabama, where the amount involved does not exceed $3000.00 * * * may be by agreement of the parties thereto transferred from the said Circuit Court to Colbert Law and Equity Court; that all cases in equity brought in the Colbert Law and Equity Court may, as a matter of right, be transferred from the said Colbert Law and Equity Court to the Circuit Court in Equity * * *.'

Section 13 provides:

'That the procedure, practice and rules governing the Circuit Courts of Alabama now, or which hereafter may be adopted, shall in all things apply to and govern the procedure and practice of the Colbert Law and Equity Court except as otherwise provided herein.'

'Unless expressly authorized so to do, a court has no authority to transfer a cause from itself to another court, and thereby give the other court possession of the case to hear and determine it, although the other court would have had jurisdiction of the cause if it had come to it by due process.' 21 C.J.S., Courts, § 502, p. 769; Stoneman v. Coakley, 266 Mass. 64, 164 N.E. 802; State ex rel. Dunham v. Nixon, 232 Mo. 98, 133 S.W. 336.

The Colbert Law and Equity Court, having jurisdiction of the subject matter of the action and of the parties, had no power, in the absence of statutory provision, to transfer the case to the circuit court and the refusal to do so did not constitute reversible error. Authorities supra.

Appellant contends that under the provisions of Section 156, Title 13, Code 1940, the court was authorized to transfer the cause to the circuit court.

When a case has not been brought in the proper court, this section gives the court the right of transfer to the court in which the suit should have been filed. The jurisdiction of the trial court to proceed to final judgment cannot be seriously questioned and this code section is not here applicable.

Moreover, even if the court had had the power to transfer the cause, the filing of the pleas of recoupment and the general issue constituted a submission to the jurisdiction of the court and a waiver of such right by defendant. 3 Am.Jur., Appearances, Section 18; Ala.Dig., Appearance, k9(4).

The second assignment of error takes the point that the trial court erred in sustaining demurrer to appellant's plea of recoupment.

'As a general rule a court has no jurisdiction of a set-off or counterclaim in an amount in excess of its jurisdictional limit. But the defendant cannot oust the court of jurisdiction by setting up such a claim.' 24 Cyc. 479; Annotation 37 L.R.A.,N.S., 606, or as stated by American Jurisprudence:

'The filing of a counterclaim in excess of the jurisdictional limit of the court does not oust the court of jurisdiction of the plaintiff's claim. The court should proceed to hear and determine the plaintiff's claim. So far as the deposition of the counterclaim is concerned, the court has no jurisdiction to hear and determine a set-off or counterclaim in excess of the jurisdictional amount.' Section 221 (Courts) 14 Am.Jur. p. 416. And by Corpus Juris:

'In the absence of statutory provisions extending its jurisdiction a court may entertain a counterclaim, set-off, or reconvention only where it would have jurisdiction to entertain the claim originally; and the cross demand must be within the jurisdiction of the court as to subject matter.' 80 C.J.S., Set-off and Counterclaim, § 12, p. 23.

The plea showing on its face the court's want of jurisdiction, demurrer taking the point of such defect of jurisdiction was proper, Rose v. Thompson, 17 Ala. 628; Campbell & Crawford, 63 Ala. 392; Tigrett v. Taylor, 180 Ala. 296, 60 So. 858, and under the authorities cited, supra, was properly sustained by the court.

Assignments of error 14, 15 and 16 take the point that the trial court committed reversible error in sustaining demurrers to pleas Nos. 3, 4, and 5.

Demurrers to said pleas were properly sustained.

It is appellant's contention that plaintiff is not the real party in interest and has no actual interest in the matter, since he carried insurance on his automobile, collected the insurance, and assigned his claim to the insurance carrier, and therefore, he has divested himself of the right to maintain this action.

It is well established in an action for the recovery of damages that the mere fact that the insured has been reimbursed by the insurer does not affect his right to maintain an action against the alleged wrongdoer who caused the damages, and whether the insurance company is entitled to the proceeds of any recovery is a matter which does not concern the defendant. Sturdivant v. Crawford, 240 Ala. 383, 199 So. 537; Government Street Lumber Co. v. Ollinger, 18 Ala.App. 518, 94 So. 177; Long v. Kansas City, Memphis & Birmingham Railroad Co., 170 Ala. 635, 54 So. 62, 63.

Also, the pleas are subject to the same criticism as that under consideration in the case of Long v. Kansas City, Memphis & Birmingham Railroad Company, supra, wherein the court observed:

'If it should be conceded (but it is not) that the assignment of a right of action based on a tort like this would be a good defense, still it does not follow that this plea is good. It alleges in the alternative that the right of action was either assigned by the plaintiffs or that they agreed that the insurance company 'could have the judgment when obtained in this cause if a judgment is obtained.' This second alternative was certainly not sufficient. This alternative if true, instead of being a defense to the suit, would impose the duty upon the plaintiff to prosecute it to judgment.'

The pleas under consideration, after stating that plaintiff has assigned his cause of action to the insurance company, variously aver that 'he has pledged to said company all of his claim in this case against the defendant; has pledged any recovery thereon.'

Plea 4 states 'plaintiff has pledged to said company his right of recovery of the cause of action in this case which he is now nominally prosecuting; has appointed the manager, or agent, of said company and their successors, attorney in fact with the irrevocable power to collect the claim represented by the cause of action now being prosecuted in this case.'

Plea 5 states 'said insurance company has paid to the plaintiff his damages caused to his automobile by its collision with an automobile driven by the defendant * * *; that the plaintiff has given the defendant notice that he has been so paid by an insurance company; by operation of law the cause or right of action herein sued on has now been subrogated to said insurance company paying said claim; plaintiff has pledged, assigned or transferred to said company his right of recovery of the cause or right of action in this case, which he is now nominally prosecuting; he has appointed the manager or agent of said company paying said claim, and their successors, attorneys in fact with the irrevocable power to collect the claim represented by the plaintiff's cause or right of action now being prosecuted in this case; and plaintiff has agreed with the said insurance company that any legal proceedings in the prosecuting of the cause or right of action in this case are to be under the exclusive direction and control of said insurance company.'

Several assignments of error are predicated upon the action of the court in denying appellant's motion to require appellee to answer certain interrogatories propounded by the appellant. There was no reversible error in the court's action in this respect. By interrogatories 3 and 4 appellant sought information as to whether appellee had insurance coverage, and if so, the name and home address of the insurance company. Under the general rule, proof concerning indemnity insurance is not admissible in the trial of a cause. Ex parte Bahakel, 246 Ala. 527, 21 So.2d 619. Appellant cites Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757; Smith v. Baggett, 218 Ala. 227, 118 So. 283; Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829-831; Ross & Co. v. Collins, 224 Ala. 453, 140 So. 764; Pittman v. Calhoun, ...