National Surety Co. v. First Nat. Bank

• Citation: 142 So. 414,225 Ala. 108
• Decision Date: 26 May 1932
• Docket Number: 5 Div. 102.
• Parties: NATIONAL SURETY CO. ET AL. v. FIRST NAT. BANK OF OPELIKA.
• Court: Supreme Court of Alabama

142 So. 414

225 Ala. 108

NATIONAL SURETY CO. ET AL. v. FIRST NAT. BANK OF OPELIKA.

5 Div. 102.

Supreme Court of Alabama

May 26, 1932

Appeal from Circuit Court, Lee County; W. B. Bowling, Judge.

Action by the First National Bank of Opelika against the National Surety Company and R. Sturdivant. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

Jas. W Strother, of Dadeville, and Ball & Ball, of Montgomery, for appellants.

Jacob A. Walker, of Opelika, and J. Sanford Mullins, of Alexander City, for appellee.

KNIGHT J.

This was a suit brought by the First National Bank of Opelika against R. Sturdivant and the National Surety Company, surety on the bond of the said R. Sturdivant, as a public warehouseman, doing business at Dadeville, Ala., under the name and style of the Farmers' Alliance Warehouse.

The complaint, as originally filed, contained one count. It averred that on January 26, 1931, the defendant R. Sturdivant was operating a public warehouse for the storage of cotton in the town of Dadeville, and on said day and for a long time prior thereto the said defendant National Surety Company was the surety on the official bond of said Sturdivant; that said bond was in the penal sum of $5,000, conditioned upon the faithful performance of the said Sturdivant's duties as a public warehouseman, and for the faithful compliance with all laws, rules, and regulations relating to the operation of a public warehouse. The complaint further averred that the plaintiff was, on the said 26th day of January, 1931, the "holder" of 72 original negotiable warehouse receipts of the Farmers' Alliance Warehouse, by R Sturdivant, and each reciting that said warehouse had received one bale of cotton to be stored, and held and delivered upon the surrender of said receipt.

Continuing the complaint avers a demand by the plaintiff upon the said warehouseman for the cotton, presenting at the time to said warehouseman the said receipts. The defendant failed and refused to deliver the cotton, stating that the cotton was not in the warehouse, and "confessing his inability to make delivery of the same." Concluding, the complaint avers "that the condition of said bond has been breached, in that, the said defendant, R. Sturdivant, did not and has not delivered said cotton to the plaintiff, on its demand, as aforesaid." That said cotton was of the value of $3,600.

The defendant Sturdivant filed a plea in abatement of the suit. In this plea, it is averred that the defendant Sturdivant was at the time said action was commenced a resident citizen of Tallapoosa county, Ala.; that the said warehouse was in Tallapoosa county; that the said Sturdivant had a permanent residence in said Tallapoosa county, and has never at any time resided in Lee county, and that none of the alleged acts, commissions, or defaults occurred in Lee county; that the National Surety Company, a corporation, is surety on the bond of the defendant as warehouseman and has no other connection with defendant nor with the Farmers' Alliance Warehouse.

The National Surety Company also filed a plea in abatement, in which, after averring the facts set forth in the abatement plea filed by defendant Sturdivant, it avers that it is a foreign corporation duly qualified to do business in the state of Alabama, and has an agent in Lee county and in Tallapoosa county, but has no interest in, or connection with, the defendant Sturdivant nor Farmers' Alliance Warehouse except as surety on said warehouse bond.

When the suit was filed, the plaintiff caused to be indorsed on the summons and complaint issued to and served on said R. Sturdivant the following: "The within summons is a branch of the original suit of the First National Bank of Opelika, Alabama, a national banking association organized under the laws of the United States, plaintiff, vs. National Surety Company, a corporation, and R. Sturdivant, doing business as Farmers Alliance Warehouse, defendants, and all the summons constitutes one suit, and is one and the same cause of action.-W. O. Brownfield, Clerk."

The plaintiff demurred to the pleas in abatement filed by each of the defendants, on a number of grounds.

The demurrers take the point that, inasmuch as the defendant National Surety Company was doing business by agent at the time the cause of action accrued, and at the time the suit was commenced, in Lee county, Ala., and was thus subject to suit in that county, the plaintiff, by force of section 9418 of the Code, could bring his suit in any court having jurisdiction of any one of the defendants, and that the circuit court of Lee county had jurisdiction of the corporation defendant.

In this contention the plaintiff is supported by the decisions of this court, and the trial court committed no error in sustaining plaintiff's demurrer to each of said pleas. L. & N. R. R. Co. v. Strickland, 219 Ala. 581, 122 So. 693; Eagle Iron Co. v. Baugh, 147 Ala. 613, 41 So. 663; Code, § 9418.

The record shows no demurrer filed to plaintiff's count 1, as originally filed, nor to that count as amended thereafter. Its sufficiency was not tested in any way, and while it may be that this count, as amended, was subject to a proper demurrer for failing to aver how, or in what way, plaintiff became the holder of the warehouse receipts, whether the same were originally issued to it, or were acquired by transfer or indorsement, nevertheless the count sufficiently stated a cause of action against defendant to support a judgment by default or nil dicit. Agricultural Code of Alabama, 1927, §§ 394, 415, 429, 453, and 454; Code, § 7858; Ahrens-Rich Auto Co. v. Beck & Corbitt Iron Co., 212 Ala. 530, 103 So. 556; Parker v. Jefferson County, 209 Ala. 138, 95 So. 364.

Of course, it is fully recognized that a complaint to support a default judgment must state a cause of action, but by statutory provision "no judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contain a substantial cause of action." Code,§ 7858; Prudential Casualty Co. v. Kerr, 202 Ala. 259, 80 So. 97; Hershey Chocolate Co. v. Yates et al., 196 Ala. 657, 72 So. 260; Kirkland v. Pilcher, 174 Ala. 170, 57 So. 46.

On May 6, 1931, the cause came on for trial in the circuit court, and on that day, in this cause, the following proceedings are shown by the judgment to have occurred: The demurrer of plaintiff to each of the pleas in abatement were sustained by the court, and by leave of the court the plaintiff amended count 1, and also amended his complaint by adding thereto count 2. The defendant separately moved the court to strike count 2, upon the ground that it was a departure from the cause of action stated in count 1 as amended. These motions were overruled. Thereupon, the defendants protesting surprise, " as to count two," moved the court for a continuance, and the judgment entry in this particular recites: "The defendants thereupon plead surprise as to count two of the complaint and move the court for a continuance of the cause; and the same being heard it is ordered by the court that this cause be and the same is hereby continued."

On the next day, May 7, 1931, the plaintiff filed in the cause its motion for judgment nil dicit on count 1 of the complaint as amended.

The motion appears in hæc verba in the report of the case.

On the day of the filing of said motion, May 7, 1931, the judgment entry recites: "On this the 7th day of May, 1931, came the plaintiff corporation, by its attorney, and moves the court for a judgment nil dicit on count one of the complaint as amended, and the defendants say nothing in bar or preclusion of said plaintiff's demands in count one of the complaint as amended: It is therefore considered, ordered and adjudged by the court that the plaintiff recover of the defendant, its damages and cost, but in as much as the same are uncertain let a jury come to inquire thereof." Then follows a recital of jury, and verdict for plaintiff assessing its damages at $3,485.77, and judgment thereon.

No order was made and entered in the cause setting aside the order of continuance made and entered in the cause on the day previous, nor does the record show any notice was given the defendants or their attorneys of the filing of said motion for judgment, or of the action, or contemplated action, of the court upon said motion. For aught appearing, they said nothing in bar or preclusion, at that time, of the plaintiff's demands, for the all sufficient reason they were relying upon the order made the day before by the court continuing the cause.

Was it then within the discretion of the court to set aside the former order of continuance made and entered in the cause without notice to the defendants, and to entertain plaintiff's motion for judgment nil dicit on any one of the counts of the complaint? If so, could the court, without first setting aside the order of continuance, proceed to hear and grant the motion for judgment nil dicit? Upon the proper solution of the last stated question depends the validity, vel non, of the judgment appealed from. The appellants contend the court was in error in rendering judgment nil dicit against them under the circumstances of the case. The appellee's insistence is, that the appellants were in default as to count one as amended, having filed no plea or demurrer thereto, and that their negligence in this respect precludes them from complaining at the action of the court. Certainly, these appellants were not in default at the time the continuance was granted them. The court had just held their pleas in...