Merchants' Laclede Nat. Bank v. Troy Grocery Co.

• Decision Date: 29 November 1906
• Citation: 150 Ala. 128,43 So. 208
• Parties: MERCHANTS' LACLEDE NAT. BANK v. TROY GROCERY CO.
• Court: Alabama Supreme Court

43 So. 208

150 Ala. 128

MERCHANTS' LACLEDE NAT. BANK v. TROY GROCERY CO.

Supreme Court of Alabama

November 29, 1906

Rehearing Denied March 2, 1907.

Appeal from Circuit Court, Pike County; H. A. Pearce, Judge.

Action by the Troy Grocery Company against the Merchants' Laclede National Bank. From a judgment for plaintiff defendant appeals. Affirmed.

This action was commenced by attachment and affidavit in a justice court. The defendant, the national bank, made an appearance and the justice notified plaintiff, who thereupon executed bond, as required. The Troy Grocery Company then filed its complaint, and the defendant bank demurred thereto, and demurrers were overruled, and judgment rendered against the bank. An appeal was prosecuted from the judgment of the justice court to the circuit court, whereupon defendant moved to quash the attachment and to stay all the proceedings. The circuit court denied the motion, and on appeal this court reversed the cause and ordered the attachment dismissed. The cause being remanded, the court, proceeding to try the cause had before it the complaint already filed and the appearance of the defendant bank. Thereupon the defendant filed a plea to the jurisdiction of the court as follows: "That the defendant herein is a national bank, organized under the national bank act for the purpose of doing a banking business, and is domiciled and has its principal place of business in the city of St. Louis, State of Missouri; that this suit was begun against said national bank by the plaintiff suing out a writ of attachment before R. U. McLure a justice of the peace in and for Pike county, Ala., and which writ was issued and levied upon certain property described in the sheriff's return as the property of this defendant, and before final judgment was rendered against this defendant in said court; and that no personal service, by summons and complaint or otherwise, has been issued or served upon them. The defendant alleges that the issuance of said attachment and all proceedings thereunder are illegal and void, for that section 5242, Rev. St. U.S. [ U.S. Comp. St. 1901, p. 3517], among other things, provides: 'No attachment, injunction or execution shall be issued against such association [national bank] or its property before final judgment in any suit, action or proceedings in any state, county or municipal court.' Wherefore," etc. To this plea plaintiff filed a replication, setting forth the facts stated above as to the origin of the suit and the appearance unconditionally by attorney of defendant. Demurrers were interposed, raising the question of the validity of the former proceedings, which were overruled. Proof was made of the facts alleged in the replication, and there was judgment for plaintiff.

L. D. Gardner and O. C. Worthy, for appellant.

Foster, Samford & Carroll, for appellee.

ANDERSON J.

This suit was commenced by an attachment in the justice court, and the record shows that the plaintiff lodged with the justice a complaint, to which the defendant demurred, and, after the demurrer was overruled, interposed a plea to the merits. Section 562 of the Code of 1896 provides: "...