State v. Stacks
Decision Date | 21 June 1956 |
Docket Number | 3 Div. 754 |
Citation | 264 Ala. 510,88 So.2d 696 |
Parties | STATE of Alabama v. J. W. STACKS et al. |
Court | Alabama Supreme Court |
John Patterson, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
Walter J. Knabe, and Herman H. Hamilton, Jr., Montgomery, for appellees.
The bill of complaint in this case was filed in the name of the State of Alabama by the Attorney General under the provisions of Act No. 351, General Acts of Alabama, 1947, page 231 ( ), against the appellees, J. W. Stacks and United States Fidelity and Guaranty Company of Baltimore, Maryland. The State sought to recover public funds alleged to have been embezzled by the appellee Stacks during his employment by the State as an account clerk at Atmore State Prison. The bill was filed in the Circuit Court of Montgomery County, in Equity, and alleged that the appellee Stacks is a resident of Jefferson County and appellee United States Fidelity and Guaranty Company is a foreign corporation authorized to do business in this State maintaining an office in the City of Birmingham, Alabama. Appellees filed a plea in abatement alleging that it affirmatively appeared from the bill of complaint that both respondents are non-residents of Montgomery County, that both are material defendants within the meaning of Title 7, § 294, Code 1940 and therefore, the circuit court of Montgomery County 'is without jurisdiction to try and determine this cause.' From a final decree in which the court sustained the plea in abatement, dismissed the action and taxed the costs against the State, this appeal is prosecuted. The decree of the lower court was final in that the dismissal of the cause was followed by a judgment against the complainant for the cost and as such will support an appeal. Ex parte Adams, 216 Ala. 241, 113 So. 235.
If the averments of the bill show that it is filed in the wrong venue, a demurrer to it on that ground is the proper practice. Ex parte Morton, 261 Ala. 581, 75 So.2d 500; Faulk v. Faulk, 255 Ala. 237, 51 So.2d 255; Wilder v. Crook, 250 Ala. 424, 34 So.2d 832; Hammons v. Hammons, 228 Ala. 264, 153 So. 210; Tigrett v. Taylor, 180 Ala. 296, 60 So. 858.
The sustaining of the sufficiency of a plea in abatement in equity is not sufficient ground for a court to dismiss a bill of complaint. Dorrough v. McKee, Ala., 89 So.2d 77; Badham v. Badham, 244 Ala. 622, 14 So.2d 730; Templeton v. Scruggs, 234 Ala. 146, 174 So. 237.
In the instant case, even though the plea in abatement should have been sustained, theoretically and for aught that appears from the record, the bill could have been amended to show that the suit was instituted at the direction of the Governor and thereby meet the objections interposed by respondents. For that reason the judgment of the lower court must be reversed. Dorrough v. McKee, supra.
However, both parties argued the case on the merits in the circuit court as they do here, and the propriety of the plea in abatement was not questioned there, nor here in briefs. Since the cause must be reversed, and the question would be identical had it come to us on an appeal from an interlocutory decree sustaining a demurrer to the bill which raised the same question of venue, we do express our views for the guidance of the circuit court in the further proceedings to be had in the cause.
The single question argued before the circuit court and here is whether the State, by its Attorney General, may maintain a suit in Montgomery County against respondents, not residents of Montgomery County, for the recovery of public funds alleged to have been wrongfully used.
The appellant cites as authority for the contention that such a suit may be maintained, Title 7, § 74, Code of Alabama, 1940, which provides:
'In the event any public officer or any agent of the state, or any depositary or custodian of the public funds or moneys, has wrongfully used such funds or moneys, suits for the recovery thereof may be instituted at law or in equity, before any court having jurisdiction of the subject-matter; and it shall not be ground of objection to such suit that either, or any, or all the parties defendant do not reside within the county, or within the district in which such suit is instituted.'
Appellees contend, on the other hand, that section 74, supra, must be read in conjunction with the preceding sections 72 and 73 and that suits under these three sections can be brought only in the name of the state on written direction of the governor, and, since the bill fails to allege that such written direction was given in the instant case, section 74 cannot be applied; that Title 7, § 294, which provides that bills in equity 'must be filed in the county in which the defendant, or a material defendant, resides' does apply.
Our attention has not been directed to, nor does our research disclose the existence of a case wherein this court has answered directly this question with respect to section 74, supra. In the case of Montgomery v. Sparks, 225 Ala. 343, 142 So. 769, 770, it was stated:
It should be noted that sections 5644 and 5647 of the 1923 Code therein referred to are presently sections 72 and 73 of Title 7, Code of 1940. Section 74 (then section 5648) was not mentioned, although it appears in the report of the case that in appellee's brief it was contended the Attorney General could maintain an action under section 74(5648) without written authority of the Governor.
In the case of McDowell v. State, 243 Ala. 87, 8 So.2d 569, 570, this court wrote:
'The Attorney General is a constitutional officer and a member of the Executive Department of the State government. Constitution 1901, section 112. The statutory authority of the Attorney General is found in sections 228-244, Title 55, Code of 1940. Section 229 provides: 'The attorney general is authorized to institute and prosecute, in the name of the state, all suits and other proceedings at law or in equity, necessary to protect the rights and interests of the state.'
In State, for Use and Benefit of Morgan County v. Norwood, 248 Ala. 128, 26 So.2d 577, 579, it was said:
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Ex Parte State Et Al.(in Re Governor Bob Riley Et Al. v. Cornerstone Cmty. Outreach Inc.
...authority for commencing such an action, and the trial judge may determine the amount of compensation.”); State v. Stacks, 264 Ala. 510, 514, 88 So.2d 696, 699 (1956) (“We are ... constrained to hold that the Attorney General must file the suits in question under [the predecessor statutes t......
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Graddick v. Newman
...Supreme Court consistently has held that the Attorney General's authority is independent of that of the Governor. State v. Stacks, 264 Ala. 510, 88 So.2d 696 (1956) (institution of suit for recovery of funds misused by public officers); Try-Me Bottling Co. v. State, 235 Ala. 207, 210, 178 S......
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Cooper Transfer Co. v. Alabama Public Service Commission, 1 Div. 761
...averments of the bill show that it is filed in the wrong venue, a demurrer to it on that ground is the proper practice. State v. Stacks, 264 Ala. 510, 88 So.2d 696; Faulk v. Faulk, 255 Ala. 237, 51 So.2d 255, 256. We are of opinion, however, that the averments of the instant bill do not sho......
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