Dozier Lumber Co. v. Smith-Isburgh Lumber Co.
| Decision Date | 21 December 1905 |
| Citation | 39 So. 714,145 Ala. 317 |
| Parties | DOZIER LUMBER CO. v. SMITH-ISBURGH LUMBER CO. |
| Court | Alabama Supreme Court |
Appeal from City Court of Birmingham; Charles A. Senn, Judge.
"To be officially reported."
Action by the Dozier Lumber Company against the Smith-Isburgh Lumber Company. From a judgment sustaining defendant's plea in abatement, plaintiff appeals. Affirmed.
The summons was executed by service on E. V. Smith as president of defendant company on the 31st day of August, 1903. On the 9th day of November, 1903, there was a judgment by default on proof of service of summons on E. V. Smith, as president of defendant company, against the defendant. On September 22 1903, the defendant company appeared specially by attorneys and moved the court to quash the return of the summons and complaint and of notice of interrogatory on the following grounds: (1) That Smith, upon whom service was made, was not an officer or agent of defendant corporation within the meaning of the law relating to service of process upon corporation. (2) For that both corporations are foreign corporations organized under the law of Massachusetts, and that the cause of action upon which this suit is founded arose outside of the state of Alabama, and the debt upon which this suit is founded was incurred and contracted outside of the state of Alabama. This motion was continued several times, until the 29th day of October, 1903, when it was overruled. On November 11, 1903, motion was made to set aside judgment by default, alleging several reasons therefor. On the 21st of November, 1903, motion was granted. The defendant then filed a plea in abatement, setting up the same grounds as those alleged in his motion to quash the summons and service above set out. This motion was granted by the court on the 23d of January, 1904. On the 5th of April, 1904 the plaintiff moved to strike the plea: (1) That it was not filed within the time allowed for pleading; (2) same ground (3) because defendant, before plea filed, had entered an appearance in court and asked for affirmative relief; (4) because before the filing of the plea, judgment by default had been entered against the defendant, and upon motion of defendant the judgment was set aside; (5) a waiver of the right of defendant to plead to the jurisdiction of the court; (6) that defendant had submitted itself to the jurisdiction of the court; (7) the recognition of the jurisdiction of the court by filing in the court before a plea answers to interrogatories filed by plaintiff to defendant; (8) a recognition of the jurisdiction of the court by defendant by filing interrogatory to Carl Isburgh. There were answers in replication which were not necessary to be set out; also demurrers to replication. There was evidence tending to show the facts alleged in the plea in abatement and the motion to quash. There was judgment for defendant, and plaintiff appealed.
London & London, for appellant.
George Huddleston, for appellee.
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