Wolff v. McGaugh

• Decision Date: 22 December 1911
• Citation: 175 Ala. 299,57 So. 754
• Parties: WOLFF ET AL. v. MCGAUGH. [*]
• Court: Alabama Supreme Court

57 So. 754

175 Ala. 299

WOLFF ET AL. v. MCGAUGH. ^[*]

Supreme Court of Alabama

December 22, 1911

Rehearing Denied Feb. 15, 1912.

Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.

Action by B. Wolff and others against W. Paul McGaugh. Judgment for plaintiffs before a justice of the peace, and on appeal to the Circuit Court defendant's plea to the jurisdiction was allowed to be filed, and plaintiffs reserve the question. Reversed and remanded.

Tyson Wilson & Martin, for appellants.

H. S Houghton, for appellee.

SAYRE J.

In their complaint in this action, which was begun before a justice of the peace in Montgomery county, the plaintiffs claimed of the defendant "the sum of $100 mesne profits as damages for a trespass committed by him" on certain lands in Lowndes county, "which are in the possession of the plaintiffs and upon which the defendant unlawfully entered, thereby putting a tenant upon said lands, renting the same out, and collecting from said tenant said rents for the years 1906, 1907, 1908, and 1909." Judgment went for plaintiffs. Upon appeal in the circuit court, the defendant offered to file a plea to the jurisdiction for that the suit was a suit for trespass to real estate situated in the county of Lowndes. In support of their objection to the filing of this plea plaintiffs showed to the court that the defendant had offered to file the plea in the court of original jurisdiction upon the trial of the cause, but that this offer had not been made until after the cause had been twice continued, once at the instance of the plaintiffs, and the second time by consent of the parties, and after plaintiffs had announced ready on the merits, and that the justice of the peace had declined to allow the plea to be filed. The circuit court allowed the plea to be filed, and plaintiffs reserved the question.

It is suggested, and doubtless it was the case, that the court below was induced by the decision in Karthaus v. N. C. &amp St. L. Ry. Co., 140 Ala. 433, 37 So. 268, to hold that the plea in question was a plea to the jurisdiction of the court over the subject-matter of the suit, and that the right to plead it could not be waived in any manner. In that case the complaint contained counts in trover and trespass to realty. The plea, addressed to the complaint as a whole, took the point that a suit for trespass to realty in Marshall county could not be maintained in the circuit court of Madison. The language of the court indicates the opinion that a plea of that character went to the power of the court in such sort that, if the facts stated in the plea were true, any judgment which the court might have rendered in favor of the plaintiff on the count in trespass would have been a nullity. The specific ruling was that the judgment be reversed because the trial court refused plaintiff's offer to obviate the plea by striking the count in trespass, the court saying also that the plea was defective because not limited in purpose to the quashing of the summons as to that count, all of which would have followed with equal propriety had the plea been considered as taking an objection which the defendant might have waived. While it seems therefore, that what was said in respect to the court's utter lack of power to render a judgment for the plaintiff, though no plea were interposed, went beyond the necessities of the case, it must be conceded that it was appropriately said, if sound in principle.

Jurisdiction in personal actions depends upon two elements: The subject-matter to be adjudged; the presence in court of the parties whose rights are to be affected by the judgment. In respect of subject-matter the court acquires jurisdiction by the act of its creation; it is inherent in the constitution of the court. The other element it acquires by its own act, by its process properly issued and served, or by voluntary appearance of the defendant. Lamar v. Commissioners' Court, 21 Ala. 772. "By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought." Cooper v. Reynolds, 10 Wall. 316, 19 L.Ed. 931.

Originally, venue entered into the question of jurisdiction in all cases, and all actions were local. This arose out of the nature of trial by jury in which the jurors, who were but witnesses, were taken from the vicinage because they were presumed to know the parties and the facts. Later, when it became necessary to meet the case of debtors who had learned to run away, transitory actions were invented. The courts finally settled upon this distinction: If the cause of action was one that might have arisen anywhere, then the action was transitory; but, if the cause of action could arise in one place only, then the action was local. Actions for trespass to land are still classed with local actions under our statute, which provides that: "All actions for the recovery of land, or of the possession thereof, or for a trespass thereto, must be brought in the county where the land lies; a summons issuing contrary to this section must be abated on the plea of the defendant." Code, § 6110. The rule of the common law concerning jurisdiction in local causes was based upon the theory that such actions, being in the nature of suits in rem, should be "prosecuted where the thing on which they were founded was situated." Casey v. Adams, 102 U.S. 66, 26 L.Ed. 52. It may be true that the action of ejectment and the possessory actions partake of the nature of suits in rem for the reason that the court undertakes to deliver the land; but it is true in a limited way only, because those actions are prosecuted without a preliminary seizure of the subject-matter, and jurisdiction must be acquired by personal service upon the defendant.

It is not perceived, however, that an action to recover damages for trespass to realty partakes in any degree whatsoever of the nature of an action in rem. In trespass, in this state where the title to land cannot be adjudicated in the action of trespass, the whole prayer is for reparation in damages to be coerced by process against any effects of the defendant to be found within the state. Not being brought for the specific recovery of lands, tenements, or hereditaments, the action is personal. 3 Bouv. Inst. 2641; Hall v. Decker, 48 Me. 255; Linscott v. Fuller, 57 Me. 406. Inherently the action is personal, though the statute still leaves it in the same category as to venue with local actions. Its inherent character also determines the jurisdiction of the court as to subject-matter; its treatment as a local action, under the statute, determines the territorial jurisdiction, the venue.

Territorial jurisdiction, or venue, may be waived, at least in personal actions. In Sentenis v. Ladew, 140 N.Y. 463, 35 N.E 650, 37 Am. St. Rep. 569, the plaintiffs impleaded the defendants in the Supreme Court for a trespass upon real property in the state of Tennessee. Plaintiffs defaulted, and there was judgment dismissing their complaint, with costs. Plaintiffs subsequently moved to set the judgment aside upon the ground that the court had no jurisdiction of the subject-matter of the suit, and could not, therefore, enter a valid judgment for the costs. The court recognized the general rule of law that actions for injuries to realty must be brought in the forum rei sitæ. But it said: "A party may waive a rule of the law or a statute, or even a constitutional provision enacted for his benefit or protection, where it is exclusively a matter of private right, and no considerations of public policy or morals are involved, and, having once done so, he cannot subsequently invoke its protection." The judgment was upheld. In Little v. Chicago, etc., Ry. Co., 65 Minn. 48, 67 N.W. 846, 33 L. R. A. 423, 60 Am. St. Rep. 421, the action for...