Williams v. Hyde

• Citation: 65 So. 708,10 Ala.App. 566
• Decision Date: 03 June 1914
• Docket Number: 260
• Parties: WILLIAMS v. HYDE.
• Court: Alabama Court of Appeals

65 So. 708

10 Ala.App. 566

WILLIAMS v. HYDE.

No. 260

Court of Appeals of Alabama

June 3, 1914

Rehearing Denied June 20, 1914

Appeal from Circuit Court, Franklin County; C.P. Almon, Judge.

Action by J.C. Williams against C.B. Hyde for deceit in the sale of a horse. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Chenault & Chenault, of Russellville, for appellant.

E.B. & K.V. Fite, of Hamilton, for appellee.

PELHAM J.

The motion to dismiss the appeal because the transcript was not filed in time is without merit. The appeal was taken, as shown by the certificate of the clerk, on the 29th day of July, 1913, and the transcript filed here February 2, 1914 the first day of the first call of the division to which it was returnable after the appeal was taken, and was therefore filed without prejudice to appellee, resulting from delay at the earliest call at which it could have been submitted. National Union v. Sherry (Sup.) 61 So. 944; Sloss-Sheffield Steel & Iron Co. v. Webster (Sup.) 62 So. 764.

Suit was brought in the justice court of "Red Bay beat," Franklin county, Ala., by the appellant, and summons was personally served on appellee, who was temporarily in the beat, but whose permanent residence was in Fayette county Ala. A motion or plea in abatement was filed in the justice court by the appellee and renewed in the circuit court, where the case was pending on appeal, to dismiss the suit on the ground that the justice court in which the suit originated was without jurisdiction, for that the appellee (as defendant) had been sued out of the county of his residence. The proof on the hearing of the motion, or plea, was to the effect that the appellee was, and had been for some time prior to the commencement of the suit, a resident of Fayette county, Ala., and had never lived in Franklin county, but that at the time the cause of action arose and the suit was commenced, he was a dealer in live stock, and had been in Red Bay beat in Franklin county in connection with his regular business, and that the cause of action arose out of a transaction had between him and appellant in said beat in the trade or sale of a mare. It was also made to appear that suit was originally brought by appellant against appellee in the justice of the peace court of Red Bay beat, Franklin county, and personal service had on the appellee, who was found within the beat at the time the summons was served on him by the officer.

The plea in abatement, or motion to dismiss, was based on the provisions of section 4648 of the Code. The action was in tort, and the cause of action arose in Red Bay beat...