Tennessee Mut. Bldg. & Loan Ass'n v. State
| Decision Date | 27 July 1893 |
| Citation | 99 Ala. 197,13 So. 687 |
| Court | Alabama Supreme Court |
| Parties | TENNESSEE MUT. BLDG. & LOAN ASS'N v. STATE. |
Appeal from city court of Gadsden; John H. Disque, Judge.
Action by the state of Alabama against the Tennessee Mutual Building & Loan Association to recover a statutory penalty. From a judgment for plaintiff, defendant appeals. Affirmed.
J. A Bilbro, for appellant.
Wm. L Martin, Atty. Gen., for the State.
The act of the legislature to give force and effect to section 4 art. 14, of the constitution of the state of Alabama approved February 28, 1887, (Acts 1886-87, p. 102,) provides that it shall be unlawful for any company, corporation, or association, not organized under the laws of this state, to engage in or transact any business in the state before complying with the provisions of section 1 of that act, and any such company, corporation, or association violating the provisions of the act shall, for each offense, forfeit and pay to the state the sum of $1,000. Section 5 of the act provides "that every penalty provided for in this act shall be sued for and recovered in the name of the state of Alabama by the solicitor of the circuit in which the offense is committed, and, when sued for and collected, must be paid by the solicitor into the state treasury, less 25 per cent., to be retained by said solicitor for his services," etc. Benjamin F. Pope, as the solicitor of the city court of Gadsden, commenced this proceeding in said city court, in the name of the state, against the defendant, (alleged to be a corporation not organized under the laws of this state, and which was alleged to have violated section 4 of said act,) to recover of it the penalty of $1,000, as there prescribed. There are several counts in the complaint, and it is noticeable that in none of them is it stated what business the defendant did carry on in the state in violation of said act. This may have been good ground of demurrer, if it had been interposed for that reason; but we do not now pass on that point, as it is not before us. The summons and complaint purport to have been executed by the sheriff on the 10th November, 1891, on J. E. Whaley, as agent of the defendant corporation, and the judgment entry recites that proof was made that J. E. Whaley was the agent of the defendant at the time of the service of the summons and complaint on him. The defendant made default, and on the 7th March, 1892, the court rendered a judgment against it, without the intervention of a jury, for $1,000 damages and costs, upon no other proof, so far as the record shows, than the proof of service, as above stated. There is no bill of exceptions in the record.
The act creating the city court of Gadsden, approved February 18 1891, (Acts 1890-91, p. 1092,) provides in its first section that the "court shall have and exercise all the jurisdiction and powers which now are or may hereafter be by law conferred on the several circuit courts of this state." The act of February 28, 1887, does not provide in terms in what court the suit for...
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