Karthaus v. Nashville, C. & St. L. Ry.

• Decision Date: 01 June 1904
• Citation: Karthaus v. Nashville, C. & St. L. Ry., 140 Ala. 433, 37 So. 268 (Ala. 1904)
• Court: Alabama Supreme Court
• Parties: KARTHAUS ET AL. v. NASHVILLE, C. & ST. L. RY.

37 So. 268

140 Ala. 433

KARTHAUS ET AL. v. NASHVILLE, C. & ST. L. RY.

Supreme Court of Alabama

June 1, 1904

Appeal from Circuit Court, Madison County; Osceola Kyle, Judge.

Action by Ernest G. Karthaus and others against the Nashville Chattanooga & St. Louis Railway.From a judgment for defendant, plaintiffs appeal.Reversed.

This suit was brought by the appellants against the appellee.The second count, which is stated in the opinion, was for trespass, and it was averred therein that the defendant had trespassed upon certain specifically described lands, and removed therefrom 6,000 cubic feet of sand, at various and divers times during the years 1898, 1899, 1900, 1901, and 1902.The lands alleged to have been trespassed upon were described as "the W. 1/2 of the S.E. 1/4 of section 8 township 8, range 4 east of Huntsville meridian, containing 79 93/100 acres, more or less."The plea in abatement which was referred to in the opinion, was as follows "Comes the defendant, and pleads in abatement of the summons in this case upon the following grounds, to wit: The lands from which the sand is alleged to have been taken, and the trespass thereto, as averred in the complaint, are situated and lie in the county of Marshall, state of Alabama."A demurrer was interposed to this plea, which was as follows: "The plaintiffs demur, in short by consent, to the plea filed herein styled a plea in abatement for the following reasons: (1) The said plea is not a plea in abatement.(2) The said plea is not shown to be verified by any one having authority to verify the same.(3) The said plea purports to be an answer to the entire complaint."There was also a motion made to strike the plea in abatement.The motion and the demurrer to the plea in abatement were overruled.The other facts of the case are sufficiently stated in the opinion.There were verdict and judgment in favor of the defendant.The plaintiffs appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

Cooper & Foster, for appellants.

Oscar R. Hundley, for appellee.

DOWDELL J.

The complaint contained two counts--the first being a count in trover for the conversion of 6,000 cubic feet of sand; the second, a count in trespass to realty.The suit was brought on the 29th day of April, 1902, and on the 19th of September, 1902, pleas in bar, in short by consent, were filed.On the 12th of February, 1903, at a subsequent term of the court, the defendant was permitted by the court to withdraw its pleas in bar, and to file a plea in abatement to the jurisdiction, against the objection of the plaintiffs.Thereupon the plaintiffs moved to strike the plea in abatement on several grounds, of which we need only notice the grounds insisted on, viz.: (1) That the plea was filed after the lapse of an entire term; (2) that the plea was filed after pleas to the merits had been filed, and therefore, on both grounds, came too late.The motion being overruled, and to which ruling exception having been reserved, the defendant demurred to the plea.The demurrers being overruled, issue was joined on the plea, and a trial was had.Upon a conclusion of the evidence, the same being without conflict, and sustaining the plea, the defendant requested in writing the general charge in its favor on the plea.At this stage of the proceeding the plaintiffs asked leave of the court to amend their complaint by striking out the count in trespass, which was denied, and plaintiffs excepted.A verdict and judgment resulted in favor of defendant, and from this judgment the plaintiffs prosecute this appeal.

The defendant's plea in abatement challenged the jurisdiction of the court as to the subject-matter of the suit, and of course has reference to the subject-matter of the second count of the complaint claiming damages for trespass to realty; the lands described being situated in the county of Marshall, and therefore without the jurisdiction of the circuit court of Madison county.Code 1896, § 4205.It is not questioned or denied but that the court has jurisdiction of the subject-matter of the first count, the action of trover being personal, and, under the section of the Code above quoted, authorized to be instituted either in the county of the defendant's residence or in the county "in which the act or omission complained of may have been done or may have occurred."So we have a complaint containing two counts, in which the court has jurisdiction as to the subject-matter of one count and no jurisdiction as to the subject-matter of the other.The plea in abatement went to the quashing of the writ or summons.Section 4205 of the Code of 1896 contains the following provision: "All actions for the recovery of land or of the possession thereof, or for a trespass thereto, must be brought in the county where the land lies; a summons issuing contrary to this section must be abated on the plea of the defendant."By the terms of the statute, the effect of the plea was to abate the summons.Generally speaking, where a complaint contains two or more counts setting forth different causes of action, each count is regarded as a separate complaint.Such was the case here.The summons brought...