Freeman v. McBroom, 11 Ala. 943

Freeman v. McBroom

11 Ala. 943 | Ala. | 1847

COLLIER, C. J.

It has been repeatedly held, not -only by this, but by other courts, that a bill may be dismissed at the hearing for want of equity, although no demurrer is interposed and the answer does not question its equity. In the present case it is true, the chancellor in his decree states that the cause was submitted on a motion to dismiss for want of equity, but he does not address himself to the consideration of the bill in that aspect; but determines, that although the bill may contain abundant equity if it were filed in the chancery court of Jackson, yet the court in which the suit was pending could not entertain it.

All the defendants except Moore had answered without insisting that the bill was filed in an improper chancery district ; but for any thing appearing to the contrary, were willing to submit to the jurisdiction. And at the term when the decree was rendered, but previous thereto, an order was made, reciting that Moore had been served with a subpcenct, more than thirty days and requiring him to show cause why an attachment should not issue against him. In this condi*946tion of the cause we cannot think the court should have repudiated it. The objection at most is only in abatement of the suit, without denying to the complainant a right to the redress which he seeks — it applies to the locality of the jurisdiction whose powers are invoked, and not to the case itself, as one to which chancery should lend its aid. If the defendants had expressly consented that the court in which the bill was filed, should proceed in the cause to a final decree, this would have estopped them from objecting, either in the primary court or on error, to the jurisdiction, because of the residence of the parties, or the court in which the judgment complained of was rendered. May not such an assent be implied from the failure of the defendants to insist that the suit was instituted in a chancery district which had no jurisdiction over the defendants, or the judgment ? [See 1 Bail. Eq. R. 187; 1 Dev. & Bat. Eq. R. 3, 182; 5 Hump. R. 315; Holman, et al. v. The Bank of Norfolk at this term.]

It has frequently been held in suits at law, that when the court has no jurisdiction of the subject matter in dispute, such want of jurisdiction cannot be waived by appearance, plea, consent, or in any other manner, and a judgment rendered in such case in favor of the plaintiff will be void. Yet where the court has jurisdiction of the subject matter, but not of the person, such want of jurisdiction of the person may be waived by consent, or by plea to the merits, and cannot be afterwards asserted. [1 Humph. R. 332.] In the present case, it must be intended that the motion to dismiss was made by the defendants who had answered the bill — in fact, Moore being in contempt, he could not move in the cause. Their assent that it should be heard in Madison must be implied from the omission to object to jurisdiction either in their answers or previously.

Shrader v. Walker, et al., is unlike the present case. There the judgment enjoined was rendered, and all the defendants but one, who was an immaterial party, resided without the chancery district in which the bill was filed. The motion to dismiss was made before an answer was filed; and it is there intimated that the defendants might have yielded to the jurisdiction, but as their consent had not been in any manner given, we sustained the decree dismissing the bill. We *947need not consider whether the residence of McBroom, (the plaintiff in the judgment,) in Madison, further distinguishes these cases, as it sufficiently appears from what has been said that the bill was improperly dismissed. The decree is consequently reversed and the cause remanded.