Stoer v. Ocklawaha River Farms Co.

• Decision Date: 05 November 1931
• Docket Number: 7 Div. 33.
• Citation: 223 Ala. 690,138 So. 270
• Parties: STOER ET AL. v. OCKLAWAHA RIVER FARMS CO ET AL.
• Court: Alabama Supreme Court

138 So. 270

223 Ala. 690

STOER ET AL. v. OCKLAWAHA RIVER FARMS CO ET AL.

7 Div. 33.

Supreme Court of Alabama

November 5, 1931

Rehearing Denied Dec. 17, 1931.

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Action by Margaret K. Stoer and Walter Frederick Stoer, as executors of the will of J. J. Stoer, deceased, J. D. Young Company Robyn Y. Peeples, and Jefferson D. Young, against the Ocklawaha River Farms Company and Thomas Stonewall Kyle. From a judgment of nonsuit, plaintiffs appeal.

Affirmed.

Willard Drake, of Birmingham, and H. M. Hampton and Hampton & Greene all of Ocala, Fla., for appellants.

Goodhue & Lusk, of Gadsden, and Cabaniss & Johnston and Joseph F Johnston, all of Birmingham, for appellees.

BROWN J.

Action of debt by appellants against appellees to recover the face amount, with interest, of a decree rendered by the circuit court of Marion county, Fla., in favor of the appellants and Jefferson D. Young, against Ocklawaha River Farms Company, a corporation, and appellee Thomas Stonewall Kyle.

Young, who was a party plaintiff at the commencement of the suit, died on September 9, 1929, and his death was suggested upon the record January 24, 1931.

The circuit court sustained the defendants' demurrer to the complaint as last amended, and this ruling superinduced a voluntary nonsuit, and this appeal.

The demurrer takes the point that the cause of action declared on did not survive the death of Young in the absence of timely steps to revive the action; that the suggestion of Young's death more than one year after it occurred came too late to prevent the abatement of the action; and that the facts pleaded do not show that the Florida court had jurisdiction of the person in such suit as to authorize a personal judgment against Kyle.

The judgment here is that the first two points taken by the demurrer, stated above, are without merit. Our statutes, Code 1923, §§ 5711-5719, do not deal with the survival of causes of actions, but with pending actions, and leave the question as to the survival of causes of actions to the established principles of the common law. Wynn, as Administrator, v. Tallapoosa County Bank, 168 Ala. 492, 53 So. 228; State ex rel. King et al. v. Pearce, Judge, 14 Ala. App. 628, 71 So. 656.

The pertinent common-law rule is that in suits by two or more plaintiffs on a joint cause of action, the cause of action does not abate on the death of one of the parties plaintiff, but survives in favor of the others, who may proceed to judgment without bringing in the personal representative of the deceased party. Long v. Kansas City, Memphis & Birmingham R. Co., 170 Ala. 635, 54 So. 62; Haven v. Brown, 7 Me. (7 Greenl.) 421, 22 Am. Dec. 208; Tompkins v. Vintroux, 3 W. Va. 148, 100 Am. Dec. 735; Rowe v. Shenandoah Pulp Co., 42 W.Va. 551, 26 S.E. 320, 57 Am. St. Rep. 870; Denigan v. San Francisco Sav. Union, 127 Cal. 142, 59 P. 390, 78 Am. St. Rep. 35; 1 R. C. L. 37, § 33; 1 C.J. 158, § 260.

The last clause of our statute, section 5715 of the Code of 1923, which provides that "the death of such party may be suggested upon the record, and the action proceed in the name of or against the survivor," is merely declaratory of the common law. 1 C.J. 158, § 260; Burrows v. Pickens, 129 Ala. 648, 29 So. 694.

And the twelve months' limitation is confined to proceedings to revive where a revivor is necessary to a further prosecution of the suit. Ex parte Meador et al. (State ex rel. Meador et al. v. Jones, Judge) 202 Ala. 80, 79 So. 474.

The remaining question is one of pleading rather than a question as to whether the decree declared on is or is not subject to collateral attack.

The general rule here is that if the declaration shows that the court rendering the judgment or decree is a court of record of general jurisdiction, it is not necessary to aver in terms that the court had jurisdiction of the parties or of the subject-matter, or to set out the facts confirming jurisdiction as this will be presumed until disproved. Pennington v. Gibson, 16 How. 65, 14 L.Ed. 847; Tenney v. Townsend, 23 Fed. Cas. No. 13,832, 9 Blatchf. 274; Gunn v. Howell, 27 Ala. 663, 62 Am. Dec. 785; Mills v. Stewart, 12 Ala. 90.

But there are several exceptions to this general rule, and one of them is, where it appears that the judgment or decree was rendered against a nonresident of the state, jurisdiction of the person must be affirmatively pleaded. 34 C.J. 1116, § 1586; Wilbur v. Abbot (C. C.) 6 F. 814; Cone v. Cotton, 2 Blackf. (Ind.) 82; Gude v. Dakota F. Ins. Co., 7 S. D. 644, 65 N.W. 27, 58 Am. St. Rep. 860. The case at bar falls within this exception.

There is an absence of affirmative averment in the complaint as originally filed, or as last amended, that the Florida court had jurisdiction of the person of Kyle, or that he was served with process while within the jurisdiction of said court, or entered an appearance in person or by attorney, as the rule of brevity and perspicuity prescribed by the statute authorizes and requires. Code 1923, § 9457; Andrews v. Flack & Wales, 88 Ala. 294, 6 So. 907; Cook & Laurie Contracting Company v. Bell, 177 Ala. 618, 59 So. 273; Birmingham Ry., Light & Power Co. v. Ely, 183 Ala. 382, 62 So. 816; Jefferson County v. Gulf Refining Co. of La., 202 Ala. 510, 80 So. 798; Weller & Co. v. Camp, 169 Ala. 275, 52 So. 929, 28 L. R. A. (N. S.) 1106.

The pleader seems to have studiously avoided making such averment, but in lieu thereof alleges:

"That at the trial of the cause resulting in the judgment sued on the fact of jurisdiction of the court over the person of defendant, Thomas Stonewall Kyle, was a fact in issue, and to be determined by said court, and that said court did determine said fact, and did judicially ascertain that said court did have jurisdiction over the person of defendant, Thomas Stonewall Kyle.

"That in the proceedings resulting in the decree or judgment against the said Thomas Stonewall Kyle, which is the foundation of this action, the said Thomas Stonewall Kyle was made a defendant, but that being a non resident of Florida, the process of said Court could not be served upon him personally, but by the laws of Florida service by publication was and is authorized and proceedings were had in said cause by which the said Thomas Stonewall Kyle was served with constructive process by publication and said court acquired such jurisdiction over him as is authorized to acquire on non residents as to whom its personal process cannot be served upon; that with knowledge of the fact that he was a defendant to said proceedings the said Thomas Stonewall Kyle did so conduct himself as to become personally present before the said court in that, he, the said Thomas Stonewall Kyle, did take charge of, manage, control and dictate the defense to said suit, and in said suit or action the question of jurisdiction of the court over the person of the said Thomas Stonewall Kyle was raised, and presented; that is to say, that during the progress of the trial the said Thomas Stonewall Kyle did verify a demurrer to the bill of complaint filed by the Ocklawaha River Farms Company; that he also testified in said cause voluntarily; that he sought by his testimony to show a complete accounting and disbursement of the funds coming into his hands as an officer of the Ocklawaha River Farms Company; that he sent witnesses to Florida to testify in said cause and paid their expenses, and did dictate, manage and control the defense interposed by and through the said Ocklawaha River Farms Company; that he, as the majority stockholder of the Ocklawaha River Farms Company took all of the assets of the corporation into the State of Alabama and kept all of the assets, including the books and records of the corporation in the State of Alabama; and that because thereof the stockholders could not file a stockholders suit, other than in Florida; that with these matters appearing in the record the complainants in said cause, the plaintiffs herein, did urge and insist that he, the said Thomas Stonewall Kyle, by his conduct, had become personally present in court and subject to the jurisdiction thereof. Plaintiffs aver that in said proceedings resulting in the decree sued on in this cause the question of jurisdiction of the Circuit Court for the 5th Judicial Circuit of the State of Florida, over the person of the said Thomas Stonewall Kyle, became a fact, to be determined by said court. Whereupon the master to whom the said cause had been referred to report to the court his findings of the law and fact did find and report to the Court as follows:

"'Having concluded the findings as above, I now arrive at a point where I must determine against whom a decree should be rendered. It would be useless to render one against Ocklawaha River Farms Company alone, as it has no assets according to the admitted facts, because all of the money, bonds and securities have been paid over to the stockholders, and Kyle has paid himself, directly and indirectly, a large sum of money in excess of what was due him, which has rendered the

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