Norton v. Hines

• Decision Date: 21 April 1921
• Docket Number: 6 Div. 290
• Citation: Norton v. Hines, 206 Ala. 134, 89 So. 277 (Ala. 1921)
• Parties: NORTON v. HINES, Director General of Railroads.
• Court: Alabama Supreme Court

89 So. 277

206 Ala. 134

NORTON v. HINES, Director General of Railroads.

6 Div. 290

Supreme Court of Alabama

April 21, 1921

Rehearing Denied May 19, 1921

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Action by H.B. Norton against W.D. Hines, as Director General of Railroads, operating the Alabama Great Southern Railroad, for damages for the loss of baggage. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Smith Wilkinson & Smith, of Birmingham, for appellant.

Pinkney Scott, of Bessemer, for appellee.

McCLELLAN J.

The plaintiff, appellant, stated his case, for failure to deliver one of three trunks checked by the defendant, appellee, from Bessemer, Ala., to Jacksonville, Tex., at a time when the United States, through the Director General, was operating the railways over which the baggage was routed, in two counts, one ex contractu and the other ex delicto. The action was instituted February 2, 1920. The demurrer of the defendant to the complaint was filed March 1, 1920. The record recites:

"After the defendant's attorney had filed his demurrers to the complaint, which had been ruled on by the court, then filed his pleas numbered 1, 2, 3, and 4 to the complaint, to which attorney for the plaintiff had filed demurrers to pleas 3 and 4, and while said demurrers were being argued to the court, the court then, on application of the attorney for the defendant, permitted attorney for the defendant to withdraw the demurrers to the complaint, the four said pleas to the complaint, and to then file the following plea to the jurisdiction of the court. ***"

The plaintiff objected to the action thus taken.

The plea to the jurisdiction asserted that under the Director General's Order No. 18, the action must have been "brought in the county or district where the plaintiff resides, or in the county or district where the cause of action arose"; that neither of these conditions are present in this cause; and that the circuit court was without jurisdiction to try the case. The matter set up in this plea was, in effect, a plea to the jurisdiction, of such nature as that it might be waived. Woolf v. McGaugh, 175 Ala 299, 57 So. 754.

The ruling on demurrer to the complaint, the filing of the pleas on the merits, the hearing and argument upon the demurrers of the plaintiff to the pleas, and the withdrawal allowed by the...