St. Louis & S.F.R. Co. v. Sutton

• Decision Date: 09 June 1910
• Citation: 169 Ala. 389,55 So. 989
• Parties: ST. LOUIS & S. F. R. CO. v. SUTTON.
• Court: Alabama Supreme Court

55 So. 989

169 Ala. 389

ST. LOUIS & S. F. R. CO. v. SUTTON.

Supreme Court of Alabama

June 9, 1910

Rehearing Denied June 30, 1910.

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by James R. Sutton against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Campbell & Johnston, for appellant.

Bowman Harsh & Beddow, for appellee.

EVANS J.

This is a tort action against the defendant railroad company, brought by an employé of the company, for damages alleged to have accrued to plaintiff on account of a personal injury averred to have been occasioned by the negligence of the defendant.

The first question to be determined is whether or not the trial court properly granted plaintiff's motion to strike defendant's plea, which is denominated by the defendant a plea to the jurisdiction of the court.

The facts necessary to be adverted to in determining this question, briefly stated, are as follows:

The action was begun by summons and complaint filed in the city court of Birmingham on the 5th day of July, 1907, copies of which were regularly served on the defendant on July 10 1907.

The complaint shows on its face that the injury to plaintiff occurred in Walker county, Ala., on the 9th day of August 1906; but neither summons nor complaint shows the residence of the plaintiff. The plea in question was filed on the 14th day of August, 1907, more than 30 days after service of the copies of summons and complaint, as above specified, on defendant. The plea is based on section 4207 of the Code of 1896, as amended by an act of the Legislature approved March 5, 1903, which provides: "A foreign or domestic corporation may be sued in any county in which it does business by agent; provided, that all actions for personal injuries must be brought in the county where the injury occurred, or in the county where the plaintiff resides; provided further, that such corporation does business by agent in the county of plaintiff's residence." Gen. Acts 1903, p. 182. On the call of the cause for trial on the 11th of February, 1908, the court granted the motion of the defendant for leave to amend the plea, and after the amendment was made, on motion of the plaintiff, the court struck the plea from the files. The grounds of the motion are that the said plea was filed more than 30 days after the service of the summons and complaint on the defendant, and that defendant had waived its objections to the jurisdiction of the court. By the act amendatory of the act establishing the city court of Birmingham, approved February 28, 1889 (Acts 1888-89, p. 992), the defendant was required "to appear and demur or plead to the complaint within thirty days after the service." Upon failure to appear and demur or plead within the time specified, the act holds the defendant in default, and subject to judgment by default on motion of the plaintiff. The amendatory act of February 28, 1889, referred to above, in its first section, provides: "Said court, except as in this act, or by some rule made and adopted by the presiding judge of said court in conformity to the powers vested in him by this act, when exercising the jurisdiction and powers of the circuit court, shall conform and be governed by the rules of procedure and practice in the circuit court, so far as the same are applicable." Rule 12 of the circuit court (Code 1896, p. 1197) provides: "No plea in abatement shall be received, if objected to, unless by the indorsement of the clerk it appears to have been filed within the time for pleading." There is nothing in the act preventive of the applicability of rule 12 of the circuit court to proceedings in the city court. Therefore it is enforceable in that court, and is applicable in this instance, unless appellant's contention that the plea under consideration is not a plea in abatement must prevail. In Fields v. Walker, 23 Ala. 155, 163, this court said in speaking of a plea to the jurisdiction: "This plea was evidently intended as a plea to the jurisdiction to the court, and must therefore be regarded a plea in abatement." See, also, the following cases, in which pleas to the jurisdiction (not of subject-matter, however) are regarded as pleas in abatement: Vaughan v. Robinson, 22 Ala. 519; Burns v. Henry, 67 Ala. 209; Prim v. Davis, 2 Ala. 24; L. & N. R. R. Co. v. Barker, 96 Ala. 435, 11 So. 453; Eagle v. Baugh, 147 Ala. 613, 41 So. 663; Eagle Iron Co. v. Malone, 149 Ala. 367, 42 So. 734; Karthaus v. N. C. & St. L. Ry., 140 Ala. 433, 37 So. 268; Campbell v. Crawford, 63 Ala. 392; Harwell v. Lehman, 72 Ala. 344, and there must be many other cases in the reports that so regard such pleas.

But section 4207 of the Code of 1896, as amended, strictly and technically speaking, refers to the venue of the cause of action rather than to the jurisdiction of any particular court (Eagle v. Baugh, 147 Ala. 613, 41 So. 663) of the subject-matter; for, the cause of action being a transitory one, confessedly there was no lack of jurisdiction in the city court of Birmingham of the subject-matter of the suit. In other words, the general jurisdiction of the court cannot be, and is not, disputed; but the plea simply sets up a special privilege of place fixed by the statute, and denies the existence of a cause of action within the local limits of the court's jurisdiction. Manifestly there is a distinction between pleas such as this one and pleas which present as a defense want of jurisdiction in the court of the subject-matter, which latter point may be made at any time, and may, if apparent upon the record, be taken by the appellate court, as the judgment of the court in such state of the case, if one were rendered, would be a nullity. Karthaus v. N. C. & St. L. Ry., supra; London v. Cox, L. R. 2 H. L. 239; Companhia de Mocambique v. South African Co., 2 Q. B. 358, 61 L. J. Q. B. 663; Campbell v. Crawford, 63 Ala. 393; Harwell v. Lehman, 72 Ala. 344; 1 Ency. Pl. & Pr. (2) p. 3; 31 Cyc. 166. Cases analogous to the one sub judice are Campbell v. Crawford and Harwell v. Lehman, supra, in which it was held that a plea in the nature of a plea in abatement was the appropriate mode of raising the objection that the bill was not filed in the district of the residence of a material defendant, and of asserting the defendant's exemption from suit in any court of chancery not of the district of his residence. See, also, Noles v. Marable, 50 Ala. 366.

And a case directly in point, and one which, if sound, is decisive of the question in hand, is that of Hudson v. Wood, 102 Ala. 631, 15 So. 356. While conceding that the decision just referred to is in conflict with the position assumed by the defendant in this case, yet the defendant urges upon the attention of the court that the decision is "narrowly reasoned," and that the conclusion there reached is unsound. Not only this, but he further insists that the decision is shaken by the "suggestion" of this court in Ex parte Scudder-Gale Grocer Co., 120 Ala. 434, 25 So. 44, "that the filing of pleas after the time for pleading might present an obstacle to the rendition of a judgment by default, although the benefit of the default had been claimed and insisted upon by plaintiff, before their filing; and also by the intimation of Stone, C.J., in U.S., etc., Co. v. Weir, 96 Ala. 396, 11 So. 436, that, to take advantage of the statute, application should be made for judgment for want of a plea." After considering the two cases relied upon by appellant's counsel as being in conflict with, or opposed to, Hudson v. Wood, we confess our inability to discover the slightest conflict. The suggestion referred to in the 120th Ala. Case, that judgment by default could not be entered with plea on file, is not only entirely rational, but is also consistent with all that was decided in the Hudson-Wood Case; for it was not determined in the latter case that a judgment by default might be rendered with a plea (even though filed after time) on file, but it was expressly decided in that case that if a defendant in default, "without leave, puts a plea upon the file, the court in its discretion, may strike it therefrom." And this is precisely what occurred in the instant case. In the second case referred to by counsel (96 Ala. 396, 11 So. 436), a demurrer was filed within the time allowed for pleading, which on hearing was overruled. A plea in bar (ne unques administratrix) was then filed, but not within 30 days from service, and on motion of plaintiff this plea was stricken. Judge Stone in that case differentiates it from one in which no demurrer or plea is filed within the time; and said in respect to a case in the latter category: "Allowing the 30 days to elapse without offering defense of law or fact, the defendant disobeys the positive mandate of the statute, and places himself at the mercy of the court, without the right to complain"--citing Reed Lumber Co. v. Lewis, 94 Ala. 626, 10 So. 333. The court did hold that, after demurrer was overruled, any defense to the merits (plea in bar) if offered before default claimed was in time. So, we repeat, there is not any conflict between the two cases and the Hudson-Wood Case, and we reaffirm, and adhere to the latter case as authority.

But it is said by appellant's counsel that, notwithstanding the court may hold that the Hudson-Wood Case is sound, his case is not concluded by it, because, he says, "on entering on the trial of the case, the defendant, for the sake of technical accuracy, amended the inducement to its plea to the jurisdiction. This application for amendment was heard by the court, without objection from plaintiff, and in the absence of any previous application for judgment or motion to strike the plea, and a formal...