Callison v. Lemons

2 Port. 145 | Ala. | 1835

By Mr. Justice Thornton :

This was an action of trespass, assault and battery, brought against the plaintiffs,in error, by the defendant, in'the Circuit Court of Blount county. The plaintiffs severed in their pleas : Fields, one of them, pleading alone in abatement; and the others' uniting in a similar defence. ■ A demurrer was taken, and sustained to both of those pleas, and the plaintiffs in •error failing to plead over, a judgment By default was entered against-them, and an inquiry of damages had by the jurjy and judgment of the Court thereon.

The cause is here by writ of error, and the assignment questions the legality of the judgment sustaining the demurrer- as also a charge of the Court to the jury, whilst executing the writ of enquiry. As to this last point, there can be no doubt that the charge- of the Court, which was, that the jury must find a joint verdict against all the defendants, and could not assess separate damages, was entirely correct.

I will proceed then to consider the other error assigned, which Involves the validity of the two pleas in abatement. The plea of the defendant Fields, I think, is substantially a good one. The objection to it, for the time of filing it, was waived by the demurrer : and its alleged duplicity, is a defect not now available, .because of our statute of jeofails, which gives to all demurrers the effect only of general demurrers ; and the plea being double, provided it contain any one substantial defence, is not a defect of substanóe; but is a redundance, which, whether it be of good matter, or bad, does not vitiate. Utile, per inutile noil vitiatur. This plea contains, though blended with other matters, these positive averments, viz: That the defendant at the impetration of the writ, was not a resident of the county of Blount, but of the Cherokee nation, out of the limits of the said county, and out of the jurisdiction of the Court; and that the said writ of capias ad respondendim was executed upon him, without the limits of the said county, and of the jurisdiction of the Court. Now, the demurrer which admits these facts, can only be sustained by affirming the proposition, that a defendant can be sued by a process from the court of a county in which he does not reside, and be arrested in virtue of said process, by the sheriff of that county, beyond its limits, and beyond the limits of the jurisdiction of the Court, of which he is the ministerial officer. This, I apprehend, cannot be maintained; so, without considering the other matters embraced in this plea, we conclude, that'it was good, and of course, that there was error in the decision of the Court, adverse to it.

With regard to the plea of the other defendants, I think the demurrer was properly sustained. It discloses no facts which authorise the conclusion, that the service of the process, which it seeks to abate, was' not lawful. The plea contains but two distinct facts;— first, that the assault and battery complained of, was committed out of the jurisdiction of the Court; which, this being a transitory action, is wholly immaterial, either in bar, or abatement; and secondly, that the process was served out of the county of Blount, in the Cherokee nation. Now, this latter fact, does not prove the service to be bad; without the additional averment, that the defendants were not residents of the county of Blount; for, by the act of 1818,^a process was authorised to be served in the Indian lands, upon any resident of the county from which the writ was issued.

The judgment must be reversed, and the cause remanded,

a Aik. Dig.279, § 115.