Hudson v. Birmingham Water Works Co.

• Decision Date: 18 May 1939
• Docket Number: 6 Div. 449.
• Citation: 238 Ala. 38,189 So. 72
• Parties: HUDSON v. BIRMINGHAM WATER WORKS CO.
• Court: Alabama Supreme Court

189 So. 72

238 Ala. 38

HUDSON v. BIRMINGHAM WATER WORKS CO.

6 Div. 449.

Supreme Court of Alabama

May 18, 1939

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action of unlawful detainer by Birmingham Water Works Company against Birdie Hudson. From a judgment for plaintiff defendant appeals.

Reversed and remanded.

Vassar L. Allen, of Birmingham, for appellant.

Benners Burr, McKamy & Forman, of Birmingham, for appellee.

GARDNER Justice.

The Birmingham Water Works Company leased, by written instrument a small tract of land to one Acton for a barbecue and sandwich stand, which lease, it appears, was transferred to Mrs. Birdie Hudson, who was notified that at its expiration it would not be renewed. The lease having terminated, the water works company instituted this action of unlawful detainer against Mrs. Hudson to recover possession of the premises, and from the judgment in its favor defendant has prosecuted this appeal.

The sole question here presented relates to the matter of service of notice of demand as specified in section 8001, Code of 1923. That the demand was correct both in form and substance is not questioned. But it was left at the rented premises, the barbecue stand, being handed to the young man there in charge,--defendant not then being present.

The above noted statute provides that it is sufficient to leave a copy of such demand in writing at the usual place of abode of the party holding over; and defendant makes the point that this language has reference to the dwelling, and not a place of business, citing Webster's Twentieth Century Dictionary, 1936 Edition, defining "abode".

In 1 Corpus Juris 304, "abode" is defined as one's fixed place of residence for the time being; the place where a person dwells. And under the treatment of the subject of "process" in 50 Corpus Juris 492, numerous authorities are cited to the effect that under the language of a statute as to service of notice akin to that of our own, it is not sufficient to leave a copy of such demand at one's place of business. See, also, 4 Words and Phrases, Second Series, p. 1112. And in the absence of any intent to the contrary, the words "usual place of abode" must be given their common ordinary meaning.

So considered, we think it clear enough that leaving a copy of the demand at defendant's place of business does not suffice to meet the requirements of the statute.

Plaintiff in large...