East Tennessee, V. & G.R. Co. v. Kennedy

• Decision Date: 28 February 1888
• Court: Alabama Supreme Court
• Parties: EAST TENNESSEE, V. & G. R. CO. v. KENNEDY.

3 So. 852

83 Ala. 462

EAST TENNESSEE, V. & G. R. CO. v. KENNEDY.

Supreme Court of Alabama

February 28, 1888

Appeal from circuit court, Dallas county; JAMES W. LAPSLEY, Judge.

This action was brought by James M. Kennedy against the appellant a corporation chartered under the laws of Tennessee, but doing business in Alabama, and was commenced before a justice of the peace, on the 13th of April, 1887. The cause of action was on account for work and labor done, amounting to $50; and the complaint in the circuit court, on appeal, contained only the common counts. The defendant pleaded payment generally and a special plea averring the facts relied on as payment namely, the institution of a suit against the plaintiff before a justice of the peace in Tennessee, and the rendition of judgment against him on personal service; the issue of an execution on that judgment, and the service of a garnishment on the defendant corporation; the answer of the garnishee admitting the indebtedness claimed in this action, and attaching the affidavit of said Kennedy, "claiming the said debt as exempt to him under the laws of Alabama;" the rendition of judgment against the garnishee on the answer, and the payment of that judgment before the commencement of this suit. The court sustained a demurrer to this plea, and the cause was tried on issue joined on the first plea. On the trial the plaintiff proved that the debt sued for was contracted in Alabama, in February and March, 1887, and that he then resided in Alabama; and he admitted the truth of all the facts stated in the defendant's second plea. "The question submitted to the court and jury was whether the debt could be condemned by the garnishment proceeding in Tennessee." The court charged the jury, on these facts, that they must find for the plaintiff, if they believed the evidence; and refused a general charge in favor of the defendant, which was requested. The charge given, and the refusal of the charge asked, to which exceptions were reserved by the defendant, are now assigned as error, together with the ruling on the demurrer, to the second plea.

Pettus & Pettus, for appellant.

Sumter Lea, for appellee.

SOMERVILLE J.

The appellee, Kennedy, as plaintiff, recovered a judgment against the appellant railroad corporation, in the circuit court of Dallas county, for about $50, in September, 1887, the case being tried de novo on appeal from a justice court. The amount was due for work and labor done by the plaintiff for the defendant in this state, of which the plaintiff was and is a resident. The defense set up by the railroad company was payment. The admitted facts show that the plaintiff Kennedy, being temporarily in the state of Tennessee, which was the residence of the defendant corporation,-where it was chartered,-was there sued by one Kane before a justice of the peace having jurisdiction of the subject-matter and the parties, and, after service of process upon him, a judgment was rendered against him for the debt claimed, with costs, amounting to about $50. That, after a return of no property found against Kennedy, a suit by garnishment was instituted on the judgment against the railroad company, and on its answer as garnishee a judgment was rendered condemning this same debt, and that this judgment had been fully satisfied. This, we think, was a full defense to the suit. The plaintiff, having gone voluntarily within the territorial jurisdiction of the state of Tennessee, was liable to be sued there as fully as if he resided in that state. His residence in Alabama was no objection to the exercise of this jurisdiction over his person. Smith v. Gibson,...