63 Ala. 392 | Ala. | 1879
The jurisdiction of a Court of Chancery depends, not only on the subject-matter, but, when the parties defendant reside in this State, and’ the suit does not relate, to real estate, or to the injunction of proceedings in other courts, the residence of the defendants, or of a material defendant, is an element of jurisdiction. The statute is mandatory, that the bill must; except in the cases specified, be filed in the district in which the defendants, or a material defendant, resides. — Code of 1876, § 3760. A bill, disclosing on its face that it is not filed in the.district of residence of a material defendant, would be subject to demurrer, or could be dismissed on motion, if there has not been a waiver of the objection. — Shrader v. Walker, 8 Ala. 244; Porter v. Worthington, 14 Ala. 584; Lewis v. Elrod, 38 Ala. 17; Freeman v. McBroom, 11 Ala. 943. When the objection does not appear on the face of the bill, or the bill avers the residence .of the defendant in the district in which it is filed, a plea, in the nature of a plea in abatement, is an appropriate mode of presenting the objection, and asserting the defendant’s ex
The present bill was filed in the Court of Chancery of the county of Sumter, the fourth chancery district of the Western Division. The defendant, against whom it is filed, pleaded that, at and prior to the filing of the bill, his residence was not in that district, but in the county of Washington. The plea was overruled, it seems, rather on the ground, that the General Assembly had not prescribed a time for holding a Court of Chancery in the county of Washington, than upon any other which is urged in opposition to it. If this be true, which we do not feel called upon to decide, it is certain that the Court of Chancery of Sumter could not cure the omission, by drawing the citizens of Washington county within its jurisdiction, involving them in all the evils of suit elsewhere than the district of their residence, against which the statute intends to protect them. The General Assembly alone can supply the omission supposed, if it exists ; and until there is some change of the statute, it is a privilege of a defendant in chancery, under the limitations expressed, to be sued in the county of his residence, of which he cannot be deprived, when it is asserted in proper time, and in an appropriate mode.
The decree overruling the plea must be reversed, and a decree here rendered sustaining the plea, and dismissing the bill, at the costs of the appellee in this court, and in the Court of Chancery.