Jefferson County Savings Bank v. Carland

• Decision Date: 03 February 1916
• Docket Number: 6 Div. 104
• Citation: Jefferson County Savings Bank v. Carland, 195 Ala. 279, 71 So. 126 (Ala. 1916)
• Parties: JEFFERSON COUNTY SAVINGS BANK v. CARLAND et al.
• Court: Alabama Supreme Court

71 So. 126

195 Ala. 279

JEFFERSON COUNTY SAVINGS BANK v. CARLAND et al.

6 Div. 104

Supreme Court of Alabama

February 3, 1916

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Action by the Jefferson County Savings Bank against J.C. Carland and others. From judgment for defendants, plaintiff appeals. Reversed and remanded.

Sterling A. Wood, of Birmingham, for appellant.

George H. Parker, of Cullman, and Eyster & Eyster, of New Decatur for appellees.

SAYRE J.

The Jefferson County Savings Bank brought this action in Jefferson county on a contract made in that county. Defendants were nonresidents, their place of residence being in the state of Ohio. Process was served upon them in Cullman county. They pleaded in abatement that they were subject to suit in this state only in the county where they were found and the trial court sustained their plea. Plaintiff appeals.

The question presented is whether on the facts stated defendants were suable in Jefferson county. The city court of Birmingham, from which process issued, is a court of general jurisdiction. By the act of its creation its jurisdiction is coextensive with that of the circuit and chancery courts, and its process runs to every part of the state. Wolfe v Underwood, 91 Ala. 523, 8 So. 774. Its process runs to any sheriff of the state of Alabama, and must be executed by the sheriff or other officer in any county. Code, §§ 5299, 5301.

The action is personal and transitory, and the defendants are nonresidents, so that our venue statute (Code, § 6110), providing that personal actions must be brought in the county in which the defendant, or one of the defendants, resides, if such defendant has within the state a permanent residence, has no application, and the question is to be determined on common-law principles.

In Brown on Jurisdiction, § 39, it is said, without citation of authority, that the venue in transitory actions, when brought against nonresidents, should be laid in the county where the defendant is found. The text is quoted in Kress v. Porter, 132 Ala. 577, 31 So. 377; but that was a proceeding in rem by attachment against a nonresident on whom no personal service was had, and the evident purpose of the quotation was to bring into view the connected statement of the text to the effect that such proceedings should be brought in the county where the property is seized. In Smith v. Gibson, 83 Ala. 284, 3 So. 321, the court said:

"The general rule is that every country has jurisdiction over all persons found within its territorial limits, for the purposes of actions in their nature transitory. It is not a debatable question, that such actions may be maintained in any jurisdiction in which the defendant may be found, and is legally served with process."

That case was cited in Steen v. Swadley, 126 Ala. 617, 28 So. 620, and Lee v. Baird, 139 Ala. 526, 36 So. 720, and its language may have been accepted as the substantial equivalent of the text of Brown on Jurisdiction, to which we have made reference. But our investigation of the sources from which the language was derived leads us to believe that jurisdiction, as there used, meant the territorial jurisdiction of the sovereignty in which the suit was brought. Thus in Peabody v. Hamilton, 106 Mass. 217, it was said that:

"Personal actions, of a transitory nature, may be maintained in any jurisdiction within which the defendant is found, so that process is legally served upon him."

At any rate, in Steen v. Swadley, this was the language:

"When as in this case a cause of action is transitory in its nature, it may be sued on wherever within the state the defendant may be personally served with process, though he be a nonresident"

--all which was well said in those cases, for in each of them nonresidents were sued in the counties where they were found, and may be accepted as true in general without involving any necessary implication that a nonresident found in one county of this state may not be haled to court in another county.

An old Georgia case (Murphy v. Winter, 18 Ga. 690) holds that a citizen of another state, who is merely passing through, resides, as he passes, wherever he is. But in that case the defendant, a citizen of Alabama, was sued in the county in Georgia...