Ex parte Dothan-Houston County Airport Authority

• Decision Date: 23 May 1968
• Docket Number: DOTHAN-HOUSTON,4 Div. 237
• Citation: 282 Ala. 316,211 So.2d 451
• Parties: Ex parteCOUNTY AIRPORT AUTHORITY et al. In re DALE COUNTY v. COUNTY AIRPORT AUTHORITY et al.
• Court: Alabama Supreme Court

Page 451

211 So.2d 451

282 Ala. 316

Ex parte DOTHAN-HOUSTON COUNTY AIRPORT AUTHORITY et al.

In re DALE COUNTY v. DOTHAN-HOUSTON COUNTY AIRPORT AUTHORITY et al.

4 Div. 237.

Supreme Court of Alabama.

May 23, 1968.

COLEMAN, Justice.

Petitioners; who are the Dothan-Houston County Airport Authority, a corporation organized under Act No. 265, General Acts 1963, Vol. 2, page 696, and the officers of the corporation; presented to this court their petition for a writ of prohibition to be directed to the Judge of the Circuit Court of Dale County, in Equity, to prohibit him from proceeding to hear a cause which had been instituted against petitioners in said court by Dale County, acting by and through its Court of County Commissioners, and certain residents of Dale County who are owners of property within two miles of Napier Field Airport in Dale County.

The petitioners prayed for a rule nisi directed to the respondent judge requiring him to appear and show cause why he should not be prohibited from further proceeding in said cause filed in the Dale County Circuit Court, in Equity, and that, on final hearing, this court grant a writ of prohibition or other appropriate writ ordering respondent to refrain from further hearing in said cause.

We issued the rule nisi as prayed. The respondent filed his answer to the rule.

In applications made to this court for mandamus, this court has stated many times that facts stated in the respondent's uncontroverted answer to the rule nisi will be taken as true, citing, § 1073 of Title 7, Code 1940. Ex parte Cunningham, 270 Ala. 300, 302, 118 So.2d 757, and cases cited in 14 Alabama Digest, Mandamus, k 164(4). We hold that the same rule applies to facts stated in the answer to a rule nisi issued in applications for the writ of prohibition. The answer of the respondent to the rule in the instant case is not controverted and facts stated in the answer will be taken as true.

Petitioners contend that respondent has no jurisdiction to hear and determine the cause filed against petitioners in the circuit court, in equity, for two reasons. First, petitioners say respondent has no jurisdiction because, in the original bill of complaint in the equity suit, complainants alleged that a statute is unconstitutional and did not demand or request that a copy of the proceedings be served on the Attorney General and no copy was served on him; and, further, that an amendment to the bill of complaint praying that a copy of the bill and amendment be served on him was not sufficient to cure the jurisdictional defect, although, on April 14, 1965, the Attorney General 'filed' in the office of the register of the circuit court, in equity, an instrument which states:

'This will acknowledge receipt of Bill for Declaratory Judgment in the matter above referred to, and further service is hereby waived.

'This office does not desire to be heard in this case.'

In support of their first insistence, petitioners rely on Wheeler v. Bullington, 264 Ala. 264, 87 So.2d 27; Town of Warrior v. Blaylock, 271 Ala. 685, 127 So.2d 618; and other cases holding that service on the Attorney General in such suits for declaratory judgment is jurisdictional.

We adhere to the holding in Wheeler, Town of Warrior, and other decisions so holding. We do not here intimate that sending a copy of the bill of complaint by mail, without more, constitutes the service required by the statute. We do hold, however, that the filing of an instrument, by which the Attorney General acknowledges receipt of a copy of the bill of complaint and waives further service and the right to be heard, satisfies the jurisdictional requirement of service on the Attorney General as required by the statute.

In Busch Jewelry Co. v. City of Bessemer, 266 Ala. 492, 98 So.2d 50, the first appeal was dismissed for failure to serve the Attorney General. 'After the rendition of this court's decision, appellant filed with the court below an acceptance of service by the Attorney General. * * *' Busch Jewelry Co. v. City of Bessemer, 269 Ala. 180, 183, 112 So.2d 344, 346. By letter, the Attorney General disclaimed any intention of participating in the case. The acceptance and waiver in the second Busch Jewelry case is substantially the same as in the instant case. This court proceed to decide the appeal, and thereby approved the method of service on the Attorney General. If the requirement of service on the Attorney General in the second Busch Jewelry case was sufficient, then the service on the Attorney General is sufficient in the instant case. We hold the service sufficient.

The answer of respondent in the instant case shows the following facts:

On February 5, 1965, complainants filed their bill against petitioners.

On March 6, 1965, petitioners filed demurrer to the bill. The demurrer challenged the equity of the bill as a whole and in several aspects but did not raise any question as to lack of jurisdiction of the Dale County Circuit Court, in Equity, nor the failure to serve the Attorney General.

On April 7, 1965, complainants amended their bill, among other things, by praying for service on the Attorney General.

On April 14, 1965, the Attorney General filed his acknowledgement of service and waiver above set out.

On April 26, 1965, petitioners filed pleas in abatement. Plea 1 raised the objection of lack of service on the Attorney General. Plea 2 raises the objection that none of the respondents reside in Dale County. The plea concludes:

'* * * The venue of this cause is not in Dale County, Alabama.'

On April 29, 1965, respondent set the pleas down for hearing on May 26, 1965.

On May 11, 1965, complainants filed demurrers to the pleas in abatement.

On May 26, 1965, the parties appeared and respondent heard argument and received briefs on the pleas and demurrers thereto.

On June 3, 1965, the respondent entered orders sustaining the demurrers to the pleas.

As to Plea 1, at the time it was filed, the Attorney General had already filed acknowledgment of service and waiver. We think it is apparent that Plea 1 is not sustained.

Petitioners' second contention is that the court in Dale County has no 'jurisdiction' because petitioners are not residents of Dale County and are a 'public corporation' not subject to suit in Dale County. This objection, as petitioners have stated in Plea 2, is to venue.

Generally, jurisdiction and venue are separate and distinct. Associated Grocers of Alabama v. Graves Co., 272 Ala. 158, 160, 130 So.2d 17.

'The problems presented call for a proper understanding of the oft-confused and loosely-used terms 'jurisdiction' and 'venue.' The term 'jurisdiction' is used in several senses, but in its general and ordinary use, it means the Power lawfully conferred on a court to entertain a suit or proceeding, consider the merits, and render a binding decision thereon. 'Venue' refers to the particular county or other subdivision in which, for the sake of convenience or other commanding policy considerations, the cause is to be heard or tried. Industrial Addition Ass'n v. Commissioner (of Internal Revenue), 1944, 323 U.S. 310, 65 S.Ct. 289, 89 L.Ed. 260; 14 Am.Jur., Courts, § 160; 56 Am.Jur., Venue, § 2.' Pepperell Mfg. Co. v. Alabama National Bank, 261 Ala. 665, 667, 75 So.2d 665, 667.

A plea to the venue may be waived. A plea to the 'jurisdiction' should be filed before a general appearance or there is a tacit admission that the court has a right to judge. W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 597, 165 So.2d 375.

Also, where an amendment makes a new case, defendant has the right to plead to the case thus made in bar or abatement, even though he had pleaded to the merits of the original complaint. Skipper case, supra. The amendment to the instant bill did not make a new case. The amendment is in the nature of one adding a necessary party.

Filing a demurrer, which is not based solely on the matter of jurisdiction of the person, constitutes a general appearance. Skipper case, supra.

Prior to filing Plea 2, petitioners had filed a demurrer not based solely on the matter of jurisdiction of the person. This demurrer constituted a general appearance, and by filing it, petitioners waived the right to file the plea to the venue which they filed later. The demurrer,...