JB McCrary Co. v. Nashville Bridge Co., 6814.

• Decision Date: 12 April 1933
• Docket Number: No. 6814.,6814.
• Citation: 64 F.2d 385
• Parties: J. B. McCRARY CO. et al. v. NASHVILLE BRIDGE CO.
• Court: U.S. Court of Appeals — Fifth Circuit

64 F.2d 385 (1933)

J. B. McCRARY CO. et al. v. NASHVILLE BRIDGE CO.^*

No. 6814.

Circuit Court of Appeals, Fifth Circuit.

April 12, 1933.

Ben D. Turner and S. M. Johnston, both of Mobile, Ala., for appellants.

Francis H. Inge and Nicholas E. Stallworth, both of Mobile, Ala., and Richard Hail Brown, of Birmingham, Ala., for appellee.

Before BRYAN, FOSTER, and WALKER, Circuit Judges.

FOSTER, Circuit Judge.

This is an appeal from a judgment awarding appellee $29,700 as a balance due on a subcontract for building parts of a highway bridge over the Tombigbee river between Clarke and Washington counties, at a point near Jackson, Ala. The record is voluminous, and there are thirty-two assignments of error on behalf of each appellant. As is usual when assignments are so multiplied, they serve more to confuse than to clarify the issues. We will not attempt to deal with them in detail.

The suit was brought originally in the circuit court of Clarke county by appellee to recover on a bond wherein appellants were respectively principal and surety. It was properly removed to the District Court for the Southern District of Alabama by appellants on the ground of diversity of citizenship. A plea in abatement filed in the state court and similar pleas repeated in the federal court were overruled. Assignments running to these rulings are seriously urged by appellants.

The plea in abatement alleged that appellants are foreign corporations qualified to do business in Alabama, each with a known place of business and authorized agents in counties other than Clarke, and that neither was doing business in Clarke county at the time the suit was instituted. Appellants rely upon section 232 of the Constitution of Alabama 1901, which provides that such corporations may be sued in any county where they do business, by service of process upon an agent anywhere in the state. The Supreme Court of Alabama has repeatedly held that section 232 is restrictive, that any venue statute in conflict therewith cannot stand, and that such corporations may be sued only in a county where they are doing business at the time the suit is filed.

Appellee relies upon section 28 of the Alabama Highway Code, Act No. 347 of 1927 (pages 348, 356), under the provisions of which the bond was required and given. That section provides that any action thereunder may be brought in the county where the work was done or in any county where the contractor does business by agent. The Supreme Court of Alabama has not had occasion to consider the conflict between section 28 of the Highway Code and section 232 of the Constitution. But the Alabama Court of Appeals, in Murphy v. Southern Surety Co., 24 Ala. App. 306, 134 So. 685, in a memorandum opinion, has held that section 28 of the Highway Code cannot prevail as against section 232 of the Constitution. It is urged by appellee that, having accepted the benefits of the Highway Act, having obtained the contract and given the bond required, appellants are estopped to urge the unconstitutionality of the venue provision. And also that venue had been waived by a general appearance.

We are not bound by the decision of the Alabama Court of Appeals, but we pass the first contention, not as being without merit, but because we deem it unnecessary to consider it. As to the second point raised by appellee, the following appears: After the suit was removed, and before a final ruling on the plea in abatement, appellants filed a motion to strike a verified account annexed to the complaint. It is not disputed that this was a general appearance to the merits. Later, counsel filing this motion was permitted to withdraw it, on the ground that he had been employed only to urge the plea in abatement and not to appear generally in the case. Subsequently, after the same counsel had participated generally in the trial of the issues, the court after a full hearing recalled the ruling permitting counsel to...