Montgomery Iron Works v. Eufaula Oil & Fertilizer Co.

• Decision Date: 26 May 1896
• Citation: Montgomery Iron Works v. Eufaula Oil & Fertilizer Co., 110 Ala. 395, 20 So. 300 (Ala. 1896)
• Parties: MONTGOMERY IRON WORKS v. EUFAULA OIL & FERTILIZER CO.
• Court: Alabama Supreme Court

20 So. 300

110 Ala. 395

MONTGOMERY IRON WORKS v. EUFAULA OIL & FERTILIZER CO.

Supreme Court of Alabama

May 26, 1896

Appeal from city court of Montgomery; T. M. Arrington, Judge.

Action by the Montgomery Iron Works against the Eufaula Oil &amp Fertilizer Company. There was a judgment for defendant, and plaintiff appeals. Reversed.

This was a statutory action of detinue, brought by the Montgomery Iron Works against the Eufaula Oil & Fertilizer Company. The facts pertaining to the rulings of the trial court which are reviewed on appeal are sufficiently stated in the opinion. Upon the overruling of the plaintiff's demurrer to the defendant's plea in abatement, the plaintiff filed a replication, to which the court sustained a demurrer interposed by the defendant. Issue being joined upon the plea in abatement, the jury returned a verdict in favor of the defendant upon said plea, and judgment was rendered dismissing the cause for the want of jurisdiction of the court. From this judgment the plaintiff prosecutes the present appeal, and assigns as error the rendition thereof and the overruling of the demurrer to the plea in abatement and the sustaining of the defendant's demurrer to the plaintiff's replication to said plea.

W. S Thorington, for appellant.

Graham & Steiner, for appellee.

BRICKELL C.J.

This was an action of detinue instituted by the appellant against the appellee. The appellee pleaded in abatement, alleging that, before and at the time of the commencement of the suit, it was residing at Eufaula, in the county of Barbour, and that neither at the time of the commencement of the action, nor since, was it doing business in the county of Montgomery by agent. The appellant demurred to the plea, assigning several causes, which may be thus enumerated: First, that it was not shown by the plea that the act complained of did not occur in the county of Montgomery; second, that the action is not founded on contract; third, that the plea is inappropriate to the action; fourth, that detinue is not of the class of actions which must necessarily be brought within the county of the residence of the defendant. The demurrers were overruled, and overruling them is the matter of the first assignment of error.

The statute (Code, § 2640) provides that actions on contracts except as may be otherwise provided, must be brought in the county in which the defendant has a permanent residence, and that all other personal actions may be brought in the county of the permanent residence of the defendant, "or in the...