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 |
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.
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:
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