Kyser v. American Surety Co. of New York

• Decision Date: 27 June 1925
• Docket Number: 2 Div. 872
• Citation: 105 So. 689,213 Ala. 614
• Parties: KYSER v. AMERICAN SURETY CO. OF NEW YORK.
• Court: Alabama Supreme Court

105 So. 689

213 Ala. 614

KYSER v. AMERICAN SURETY CO. OF NEW YORK.

2 Div. 872

Supreme Court of Alabama

June 27, 1925

Rehearing Denied Oct. 22, 1925

Appeal from Circuit Court, Dallas County; S.F. Hobbs, Judge.

Bill in equity by the American Surety Company of New York against James K. Kyser. From a decree on demurrer, respondent appeals. Affirmed.

Hybart & Hare, of Monroeville, for appellant.

Stuart Mackenzie, of Montgomery, for appellee.

MILLER J.

This is a bill in equity by the American Surety Company filed in the circuit court of Dallas county against James K. Kyser, a resident citizen of Monroe county, and R.L. Kenan, a resident citizen of Dallas county. Kenan demurred to the bill because it seeks no relief against him. His demurrer was sustained by the trial court on November 1, 1924, and no appeal was taken from the decree.

The defendant, Kyser, on September 18, 1924, demurred to the bill because: (1) There is no equity in the bill; (2) the facts alleged in said bill do not show any necessity for an accounting, and it does not appear from the allegations of the bill that the complainant could not ascertain any outstanding indebtedness covered by the bond otherwise than by resort to a court of equity, and (3) the allegations of the bill do not make out a case for specific performance. The court by decree on November 1 1924, overruled the first and third grounds of this demurrer and sustained the second ground of demurrer, and allowed the complainant 30 days thereafter to amend the bill. The complainant did not amend the bill, and no appeal was taken from that decree to this court.

Kyser on January 15, 1925, filed six additional grounds of demurrer to the bill. They are that the bill on its face shows that the circuit court of Dallas county, in equity, has no jurisdiction of the person of either defendant; that Kenan is not a material defendant, and that Kyser resides in Monroe county; and that the bill shows it is not filed in the county of the residence of a material defendant, as required by section 6524 of the Code of 1923. These demurrers of Kyser were by decree of the court overruled on March 5, 1925; and Kyser, on March 13, 1925, appealed from that decree within the time and by giving security for costs of the appeal as the statutes permit. Sections 6079 and 6101, Code 1923.

The appellant, Kyser, assigns as error the decree of the court dated November 1, 1924, overruling the grounds of demurrer that there is no equity in the bill, and holding there was equity in the bill. The appellee moves to strike all assignments of error based on that decree of November 1 1924. This decree, rendered November 1, 1924, was interlocutory in its nature and character. The appellant could have appealed from it within 30 days after it was rendered. Section 6079, Code 1923. This he failed to do. Under the statute he can assign it as error on appeal taken on final determination of the cause; but this appeal is not from a final decree on determination of the cause. This appeal is from an interlocutory decree rendered March 13, 1925, overruling demurrers to the bill. Section 6079, Code 1923. Errors based on the interlocutory decree rendered on November 1, 1924, cannot be assigned on appeal from an interlocutory decree rendered March 5, 1925; and the motion to strike the assignments of error bearing on the interlocutory decree of November 1, 1924, must be granted. No appeal was taken from that decree. An appeal on it is barred. Section 6079, Code 1923; Stoudenmire v. De Bardelaben, 85 Ala. 85, 4 So. 723; Burgin v. Sugg, 210 Ala. 142, headnotes 3, 4, 97 So. 216; Kimbrell v. Rogers, 90 Ala. 339, 346, 7 So. 241, last paragraph of opinion.

In Foley v. Leva, 101 Ala. 399, 13 So. 747, the court wrote:

"No assignments of error can be made upon a decree which does not support an appeal, or upon one which is barred."

In Branch Bank v. Rutledge, 13 Ala. 196, this court said:

"The bank must be considered as having waived the objection which it now for the first time makes. The chancery court had jurisdiction of the subject-matter of the complaint, but merely exercised it in the wrong county. This was a matter which the court was not bound mero motu to notice, and which the defendant below could waive, and did waive, by failing to raise the objection in that court."

The foregoing was quoted with approval in White v. White, 206 Ala. 231, 89 So. 579, and it was there declared that the rule is the same in law and in equity, and cited Woolf v. McGaugh, 175 Ala. 299, 57 So. 754.

When a bill is filed in a county in which no material defendant resides, and this defect is apparent on the face of the bill, the defect is available by demurrer to the defendant residing in another county. Lewis v. Elrod, 38 Ala. 17; Riles v. Coston-Riles, 208 Ala. 508, headnote 6, 95 So. 43.

In 2 R.C.L. 327, we find the following general text:

"Where a defendant intends to rely on a want of jurisdiction over his person, he must appear, if at all, for sole purpose of objecting to the jurisdiction of the court. An appearance for any other purpose is usually considered general."

And the general rule is thus stated in 4 Corpus Juris, 1337, headnote 64:

"The filing of a demurrer, unless based solely on the ground of lack of jurisdiction of the person, constitutes a general appearance."

The demurrer, filed September 18, 1924, by this defendant, to the bill of complaint was a general appearance. Liverpool, etc., Co. v. Lowe, 208 Ala. 12, headnote 6, 93 So. 765; Ex parte Henderson, 84 Ala. 36, headnote 3, 4 So. 284. It did not object to the bill, because it showed on its face that the defendant, residing in Dallas county, was an immaterial defendant, and the circuit court of Dallas county had no jurisdiction on the face of the bill of the person of the other defendant, Kyser, who resides in Monroe county. There were three grounds of demurrer, and they are hereinbefore set out in full. "An appearance is a submission to the jurisdiction of the court, in obedience, or in answer to process." Grigg v. Gilmer, 54 Ala. 425, 430. An unconditional appearance of a defendant to a cause in court gives the court jurisdiction of the person of the defendant so appearing. Merchants' Bk. v. Troy, etc., Co., 150 Ala. 128, 43 So. 208. The appellant, Kyser, insists the venue of the person of the defendant was raised by the ground of the demurrer which states "there is no equity in the bill." But the statute does not support him in this contention. Section 6553, Code 1923. This section declares a demurrer to the bill must set forth the grounds of demurrer specially, unless the defendant desires to test the equity of the bill, when he may do this by a general demurrer that "there is no equity in the bill." This ground, "there is no equity in the bill," appearing in the demurrer is general and simply tests the equity of the bill and not the jurisdiction of the court of the person of the defendant. Section 6553, Code 1923, and authorities there cited.

Parties by consent cannot confer on courts jurisdiction of the subject-matter. It is given to the courts by law. When the court has jurisdiction by statute of the subject-matter, the court may have jurisdiction conferred on...