Hammons v. Hammons

• Decision Date: 18 May 1933
• Docket Number: 5 Div. 128.
• Citation: 228 Ala. 264,153 So. 210
• Parties: HAMMONS v. HAMMONS.
• Court: Alabama Supreme Court

153 So. 210

228 Ala. 264

HAMMONS v. HAMMONS.

5 Div. 128.

Supreme Court of Alabama

May 18, 1933

Rehearing Denied Sept. 28, 1933.

Further Application for Rehearing Stricken March 15, 1934.

Appeal from Circuit Court, Elmore County; F. L. Tate, Judge.

Bill for divorce by Erwin T. Hammons against Mary Hammons. From a decree overruling a demurrer to the bill, respondent appeals.

Reversed rendered, and remanded.

Powell & Hamilton, of Greenville, for appellant.

Dan Gullett Cook, of Camden, and Huddleston, Glover & Jones, of Wetumpka, for appellee.

FOSTER Justice.

This is a bill for divorce and shows on its face that it was not filed in the district of the residence of defendant who resides in Alabama, nor in that in which the parties resided when the separation occurred. Section 7415, Code. There was therefore a defect of venue apparent on the face of the bill and it was subject to a motion to dismiss or demurrer on that ground. Prickett v. Prickett, 147 Ala. 494, 42 So. 408; Campbell v. Crawford, 63 Ala. 392; Harwell v. Lehman, Durr & Co., 72 Ala. 344; Elmore County v. Tallapoosa County, 221 Ala. 182, 128 So. 158; Woolf v. McGaugh, 175 Ala. 307, 57 So. 754, 757.

But since the court has general jurisdiction of the subject-matter and the statute is a venue provision and is only for the benefit of defendant, he may waive it, and does so, unless seasonable objection is made on that ground. Wakefield v. Wakefield, 217 Ala. 517, 116 So. 685; Kyser v. American Surety Co., 213 Ala. 614, 105 So. 689; White v. White, 206 Ala. 231, 89 So. 579.

In this case defendant appeared by filing a demurrer addressed to the bill as a whole in legal effect, and assigned two grounds; the first was a general ground for want of equity, and the second was that it was in the wrong venue, for the reason stated. The chancery court took the view that the ground assigned "for want of equity" waived the ground assigned for improper venue, and appellee relies upon that theory on this appeal to sustain the decree.

The theory of a demurrer is that it is an entity. The grounds are but particular reasons why the demurrer should be sustained. It should be sustained if any ground shows a good reason for doing so. And on appeal, such a decree should be affirmed if any ground is well taken, though that on which the court bases its ruling may not be a good ground in the opinion of the appellate court. Patten v. Swope, 204 Ala. 169, 85 So. 513; Cahaba Coal Co. v. Elliott, 183 Ala. 298, 307, 308, 62 So. 808; Allison-Russell-Withington Co. v. Sommers, 219 Ala. 33, 121 So. 42.

The grounds assigned in a demurrer are not separate demurrers, like separate pleas, where those in abatement may not be united with those in bar. Rhode Island Ins. Co. v. Holley (Ala. Sup.) 146 So. 817,

and cases cited. There is no limitation upon the right to assign in a single demurrer every ground shown on the face of the bill.

When a bill shows on its face that it is filed in the wrong district, and a demurrer to it assigns that ground, though it also assigns other grounds, this court has held that it should be sustained regardless of other grounds. Lewis v. Elrod, 38 Ala. 17; Ashurst v. Gibson, 57 Ala. 584.

In section 45, Sims' Chancery Practice, on the authority of the case of Lewis v. Elrod, supra, it is asserted that this defect may be taken by a general demurrer. Our statute authorizes a general demurrer, otherwise it must set forth the ground specially. Section 6553, Code.

Properly interpreted, we think the demurrer shows a purpose to question the equitable right, which is denominated a "want of equity," in the complainant to maintain the suit in Elmore county, and not in the county in which the bill shows it ought to have been filed.

The situation is different from that in Kyser v. American Surety Co., supra, in that, the demurrer in that case, though it assigned the general ground, did not specially assign the ground that it showed an improper venue, and was acted on by the court apparently without that insistence being made, and some months later defendant attempted to raise the question by another separate demurrer. The court held that the venue had been waived.

This case is also essentially different from Thompson v. Wilson, 224 Ala. 299, 140 So. 439. It was not there a question of venue, but of personal service, and the right to a personal decree. Such a question cannot be reached by demurrer, and the right to make the claim is waived by a demurrer which is and must be upon some other ground. Liverpool & London & Globe Ins. Co. v. Lowe, 208 Ala. 12, 93 So. 765; 2 R. C. L. 330, 331, § 10.

While the demurrer of course is an appearance by defendant, and waives service of notice, it cannot be said to be a submission to the venue of the suit, when the first and only pleading she filed is single in meaning and questioned the right to the venue of the suit. We think the demurrer should have been sustained. The decree of the circuit court, in equity, is reversed, and one is here rendered sustaining the demurrer, and the cause is remanded.

Reversed, rendered, and remanded.

ANDERSON, C.J., and GARDNER and BOULDIN, JJ., concur.

On Rehearing.

FOSTER Justice.

We do not think that the authority of Lewis v. Elrod, 38 Ala. 17, and Ashurst v. Gibson, 57 Ala. 584, which we cited, should be minimized because they are old. Our understanding is that a principle is not wanting in authority because old and long settled, when no change has been made. Counsel have gone to the trouble to find the original record in those cases, and seem to find comfort in what they show. In the first case a plea in abatement was first filed; later demurrers were filed, before action on the plea in abatement. Such is ordinarily regarded as a waiver of the plea. But it is well understood that if the bill shows on its face that it was filed in the wrong district, it is subject to demurrer on that ground and a plea is not necessary. Counsel are particular to say that the first ground of demurrer was there directed to this defect, and that others were directed to the merits. We do not think...