Rich v. Brewer

• Decision Date: 20 January 1921
• Docket Number: 3 Div. 496
• Citation: 87 So. 323,205 Ala. 343
• Parties: RICH et al. v. BREWER.
• Court: Alabama Supreme Court

87 So. 323

205 Ala. 343

RICH et al. v. BREWER.

3 Div. 496

Supreme Court of Alabama

January 20, 1921

Rehearing Denied Feb. 12, 1921

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action by Maude W. Brewer, as administratrix of the estate of Willis Brewer, deceased, against A.D. Rich and others for damages for the death of her husband. There was judgment for the defendants which on motion of the plaintiff was set aside and new trial granted, from which order defendants appealed. Affirmed.

The action was for the wrongful death of Willis Brewer by wrongfully shooting him with a gun. The defendants were A.D Rich, Joe Baltzer, Jack James, and Charley Varner. Varner interposed a plea to the jurisdiction, setting up that he was a resident of Lowndes county and that the killing took place in Lowndes county. The following charges were given for the defendants on the original trial of the case:

(1) If the jury find from the evidence in this case that neither of the defendants Rich and Baltzer are liable to the plaintiff, then they cannot find a verdict against said Varner.

(2) If the jury believe from the evidence in this case that there was no conspiracy or agreement among the defendants to kill Brewer, then the jury cannot find a verdict against Varner.

(12) If the jury believe from the evidence that the defendant Varner resides in Lowndes county, Ala., and so resided when this suit was commenced, and that said Brewer was killed in said Lowndes county, and that neither the defendant Rich nor defendant Baltzer is liable to plaintiff, then they cannot find a verdict against the defendant Varner.

C.P McIntyre and Ball & Beckwith, all of Montgomery, for appellants.

W.A Gunter, W.P. McGaugh, and Ludlow Elmore, all of Montgomery for appellee.

ANDERSON C.J.

This action was for the wrongful killing of the plaintiff's intestate, which occurred in Lowndes county, against several defendants, and could have been properly brought in said Lowndes county or any other county in the state where either of said defendants had a permanent residence. Section 6110 of the Code of 1907. The trial court in the case at bar, by giving, at the request of the defendants, charges (which we number) 1, 2, and 12, seems to have proceeded upon the theory that plaintiff could not recover against defendant Varner who resided in Lowndes county, if his codefendants, or one of them, who resided in Montgomery county, were in no wise liable or responsible for the wrongful death of the intestate. The question of venue is a defense in abatement and...