Davis v. Jones, 6 Div. 264.

• Decision Date: 08 December 1938
• Docket Number: 6 Div. 264.
• Citation: 184 So. 896,236 Ala. 684
• Parties: DAVIS v. JONES ET AL.
• Court: Alabama Supreme Court

184 So. 896

236 Ala. 684

DAVIS v. JONES ET AL.

6 Div. 264.

Supreme Court of Alabama

December 8, 1938

Appeal from Circuit Court, Jefferson County; J. Fritz Thompson Judge.

Action for damages by W. C. Davis against Carl Jones and others. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

A plea to the jurisdiction in a court of general jurisdiction must be made prior to the general appearance or there is a tacit admission that the court has the right to proceed.

The complaint, filed in the circuit court of Jefferson County alleges in substance that defendant Carl Jones was the duly acting constable of Precinct 1, Cullman County, and that certain named defendants were sureties on his official bond that Herman Persall was the duly appointed and acting deputy sheriff of Cullman County and also jailor of said county, and on the date in question in charge of the jail; that defendant Standard Accident Insurance Company, a corporation, was surety on his official bond; that defendant J. E. Pierce was the duly elected sheriff of Cullman County, and defendant W. T. Newton and other named defendants were sureties on his official bond. It is further alleged that on the date in question plaintiff was unlawfully arrested and taken to jail by defendant Jones; plaintiff was placed in a cell with several other prisoners, over plaintiff's protest, and was by said prisoners assaulted and beaten; that defendant Herman Persall, as deputy sheriff and jailer aforesaid, wilfully, wantonly and maliciously refused to comply with plaintiff's request that he be removed from said cell after being attacked by said other prisoners.

The defendants Persall and Standard Accident Insurance Company filed the following plea in abatement:

"Come the defendants, Herman Persall, and the Standard Accident Insurance Company, a corporation, separately and severally, and appear specially for the purpose of filing this plea and pleads in abatement to the complaint and limits their appearance for that purpose only, and alleges as follows:

"That none of the defendants in this cause reside in Jefferson County, Alabama, but reside in Cullman County, Alabama, except the defendant, The Standard Accident Insurance Company, which is a foreign corporation authorized to do business in Jefferson County, Alabama, and that this cause of Action did not arise in Jefferson County, Alabama, but arose, if at all, in Cullman County, Alabama; that the defendant, The Standard Accident Insurance Company, is the surety upon the private bond of the defendant, C. H. Persall, as Deputy Sheriff of Cullman County, Alabama, a copy of which bond is hereto attached and marked Exhibit 'A,' and is payable to J. E. Pierce, Sheriff of Cullman County, Alabama; that said bond is not an official bond and no right of action can be maintained upon

said bond by the plaintiff in this cause. That the said Standard Accident Insurance Company was made party defendant solely for the purpose of bringing suit in Jefferson County instead of Cullman County, where all of the other defendants reside and where the cause of action arose, and the Court takes Judicial knowledge that no official bondis required or authorized to be made by deputy sheriffs in Counties of less than 81,000 population. All of which the defendant is ready to verify."

The bond exhibited with this plea, payable to J. E. Pierce, Sheriff of Cullman County, is conditioned as follows:

"The condition of the above obligation is as follows:

"That whereas, the above bound C. H. Persall was, on the 29th day of December, 1934, appointed to the office of Deputy Sheriff for the term beginning January 14, 1935, and ending January 14, 1939 in and for said County:

"Now, if the said C. H. Persall shall faithfully discharge the duties of such office during the time he continues therein, or discharge any of the duties thereof, then the above obligation to be void; otherwise to remain in full force and effect. And as against this obligation, we and each of us hereby waive our exemptions as to personal property."

Similar pleas were filed by other defendants.

Defendant W. T. Newton (one of the sureties on bond of J. E. Pierce, as sheriff) filed a motion to strike the foregoing plea in abatement (specifying several grounds), "in order that Justice might be done insofar as the defendant, W. T. Newton, is concerned."

Plaintiff demurred to the foregoing plea in abatemant upon these grounds:

"1. For that said plea in abatement is insufficient as a matter of law.

"2. For that it affirmatively appears from said plea in abatement that this Honorable Court has jurisdiction of the Defendant, "Standard Accident Insurance Company" and as such can acquire jurisdiction of defendants residing in other counties by branch summons.

"3. For that said alleged plea in abatemant does not state sufficient facts that would entitle these defendants to have said cause abated as to them, or either of them.

"4. For that each of the defendants named in said plea in abatement have not verified same as required by law.

"5. For that the alleged verification is not sufficient as required by law.

"6. For that it is not alleged that there is a court of competent jurisdiction where the defendants reside in which plaintiff can sue them.

"7. For that sufficient facts are not averred to entitle the defendants named therein to the relief sought by their plea in abatement."

The trial court overruled the motion of defendant Newton to strike plea in abatemant and overruled demurrers to said plea by plaintiff.

Because of such adverse ruling on pleading, plaintiff took a non-suit, and appeals. Defendant Newton cross-assigns error.

Thos. W. Millican, of Cullman, and John Ike Griffith and Jim Gibson, both of Birmingham, for appellant.

W. Marvin Scott, of Cullman, for cross-appellant.

St. John & St. John, of Cullman, for appellees.

THOMAS Justice.

The trial court overruled demurrer to plea of defendants, a foreign corporation and an individual.

It is well...