Ex parte Teague, 6 Div. 718.

• Decision Date: 22 November 1940
• Docket Number: 6 Div. 718.
• Citation: 241 Ala. 53,200 So. 892
• Parties: EX PARTE TEAGUE ET AL.
• Court: Alabama Supreme Court

200 So. 892

241 Ala. 53

EX PARTE TEAGUE ET AL.

6 Div. 718.

Supreme Court of Alabama

November 22, 1940

Rehearing Denied March 27, 1941.

Original petition of Bob Teague and Jefferson T. Nelson for mandamus to require J. Edgar Bowron, as Judge of the Tenth Judicial Circuit, County of Jefferson, to enter an order sustaining petitioners' plea in abatement in the cause of Geneva Price, plaintiff, v. Bob Teague, Jefferson T. Nelson, and others, defendants.

Mandamus denied.

Lange Simpson, Brantley & Robinson and W. P. Rutledge, all of Birmingham, for petitioners.

Taylor & Higgins, of Birmingham, for respondent.

LIVINGSTON, Justice.

This is a petition for a writ of mandamus commanding or directing J Edgar Bowron, as Judge of the Tenth Judicial Circuit of the State of Alabama, to enter an order or judgment sustaining a plea in abatement, or to vacate, set aside and annul an order or judgment for the plaintiff on said plea in abatement entered in the case of Mrs. Geneva Price, plaintiff, versus The Birmingham News, a corporation; Age-Herald Publishing Company, a corporation; Bob Teague and Jefferson Nelson defendants, in the Circuit Court of Jefferson County, Alabama, on March 15, 1940.

In response to a rule nisi issued by this court on June 28, 1940, the respondent J. Edgar Bowron, as Judge of the Tenth Judicial Circuit of the State of Alabama, answered. The substance of respondent's answer is as follows: That on, to-wit, September 5, 1939, Mrs. Geneva Price, as plaintiff, filed a suit against Bob Teague, Jefferson Nelson and others, as defendants in the Circuit Court of Jefferson County, in which she seeks to recover damages for and on account of the death of her minor child, Marshall Price, alleged to have been killed as a proximate result of the negligence of said defendants. That the defendants Bob Teague and Jefferson Nelson filed a plea in abatement in said cause in which they substantially alleged that, the plaintiff, Mrs. Geneva Price, is the identical person who, as plaintiff, filed suit against these identical defendants in the Circuit Court of Chilton County, Alabama, on August 30, 1939, to recover damages for and on account of the death of her minor child Marshall Price, alleged to have been killed as a proximate result of the negligence of the defendants. That the suit filed in the Jefferson Circuit Court and that filed in the Circuit Court of Chilton County were for the same identical cause of action; that the defendants have filed demurrers to the cause of action pending against them in the Chilton Circuit Court, and that said cause was still pending, and prayed that the suit pending in the Jefferson Circuit Court be abated. To the plea in abatement, the plaintiff, Mrs. Geneva Price, replied in substance that the suit filed in the Circuit Court of Chilton County, wherein Geneva Price was plaintiff and Bob Teague and J. F. Nelson, and others, were defendants, was not filed by her, was not filed by anyone who was authorized by her to file a suit; that said suit was filed without authority from her and without her consent or permission.

The answer of respondent further alleges that the above cause of action was duly and regularly assigned to him, as Judge of the Tenth Judicial Circuit, by the presiding judge of said circuit for settlement of the pleadings therein, and that March 15, 1940, was set for the settlement of the pleadings in the cause; that he notified the attorneys who filed the complaint in the Circuit Court of Chilton County of the date set for the settlement of the pleadings, and of the fact that Mrs. Price claimed that the suit filed by them was unauthorized, and that they could appear for the protection of their interest, if they so desired. And it affirmatively appears, without dispute, that said attorneys received said notice.

It is...