General Motors Acceptance Corp. v. Home Loan & Finance Co.
120 So. 165
Ala.
1928
Check Treatment

*1 081 contradictory security contained tlie and instructions ant. It was for to tenant exceptions general charge, family, were and to which his was enter which the contract reserved, into, contemplation parties, retried. should be ed of the was in rehearing application for and the consideration or material judgment granted, prolonged affirmance set tenan thereof for the continued or difference, judgment cy. aside, no of the circuit oral makes instruction reversed, wife, right of the and the cause as between the husband and of action ex an- con result If husband Justices concur contractu. rehearing, tracted, hereinabove indi- member of fam nounced on it was for each contracted, ily. behalf, her own on cated. If the wife family. security of the and the agree, in a case where there writer cannot defect, a contract (120 165) and there is no concealed So. right defect, no of action there is COR- MOTORS ACCEPTANCE GENERAL family, by in tort a member tenant’s LOAN & FINANCE v. HOME PORATION (8 962.) purpose of Div. CO. into for the the contract entered family, security and his tenant 8, Supreme Nov. 1928. of Alabama. Court contractu it extended an action ex tenant, Rehearing, Modified, Denial of family. reasoning on As his not to 2, Feb. 1929. 345, Coleman, employed Hart v. 1918E, 213, 201, L. A. be held 78 should So. protect tenant made available to contractu, extend him of the action should ex his immediate fam that rule members of ily, protection benefit con for whose into with landlord. tract was entered contemplation of the This was within the parties, family protect member of the dwelling. occupying premises as a Bird 47, N. Y. v. Paul F. & M. Ins. 224 St. 875, 86, N. Winter-Loeb 120 E. 13 A. L. R. Boykin, Co. Groc. to re actions ex contractu and allowed by See, principals. cover the undisclosed also, Vinson Tel. Tel. v. Southern Bell 1915C, L. R. So. A. opinion foregoing expresses writer Justice BOULDIN. Corpus Juris, 209. the action and on count judgment trial was had exis contractu is the GARDNER, THOMAS, of Justices BOUL DIN, (and BROWN; that it ex delicto throughout so treated the trial court trial) judgment is the FOSTER, JJ.; and SAXRE and does not state an action for tort and defendant charge. should have the affirmative majority indicated, on a further con- thereto, sideration of count and demurrer are of not aver with suffi- it did certainty legal cient the contract or effect thereof'; it should set forth the conditions on which the of the action ex contractu personal injury rests, Hart v. stated Coleman, supra. We are further of rule of Best Park & Amusement Co. v. Rol lins, 1917D, Ann. Cas. disputed should not be question of consideration for the renewed and tenancy, complaint extended and the is sub ject appropriate ground demurrers, 8, challenging Nos. 7 and the same. The ma jority opinion, aré further of in view of the *2 Appellant was a corporation, and sued in this case for automobiles, alleged conversion of two county, have occurred in Madison Alabama. Appellant pleaded in abatement that foreign corporation, a was and at the time had a known filed it of business Alabama, wit, Birmingham, and that it was not in Madison at the time the cause of action nor at the time suit was Plaintiff plea. demurred to this This court in of Case Mach. Co. v. McGuire. 729,held that under section 232 of the Consti- Huntsville, Smith, & and Mullins E. tution, venue of tort

Jenkins, Birmingham, appellant. foreign corporation is in a begun, the suit was and 'not in the where the tort was parte committed. Ex Western Un- ion Tel. 76 So. 438. requirement that, There is no of law entitle plea, defendant to the benefit of this allege it must it had a of of business in Alabama time the cause wholly action arose. immaterial. Upon foregoing ap- authorities it parent plea in abatement was in good form, and not to the demurrer. Appellee by contending answers sustained, plaintiff after such demurrer was by adding amended additional counts to the White, & Lanier and Watts & complaint, Pride plea in abatement Huntsville, appellee. counts, was not renewed to such additional and cites authorities. cases cited do not question. They affect this do not relate to pleas abatement, plea bar. The appellant abatement went to the to sue county. in Madison need be but one time the trial of determined one case. Each amendment is not the institution of a new suit. After the has sustained plea going demurrer to abatement venue, necessary stage it is not at each there plea abatement; after to renew the fur pleadings proceedings ther do not waive 9517,Code; the error. Sec. Terminal Oil Co. v. Planters’ W. G. Booker, Steele v. sustaining For ed restrictive, tlie error of the court abatement, plea appellant’s that in a demurrer time held at is, therefore, the ease not be sued be reversed. could must assignments committed, pro- unnecessary where a tort was to consider other *3 opinion error. vided in the section we think conclusion, was state Reversed failed to in its correct properly interpretation of Con- the the GARDNER, Case, and stitution as embraced in the Sullivan BOUDDIN, supra, JJ., properly concur. construe the failed Co., 198 case of Lewis Ala. the International Ins. Rehearing. states, If, opinion On the So. 629. as permissive and not re- Constitution was In of Sullivan 371, the case strictive, the a different effect would call for v. Sullivan Timber 941, 103 Ala. Case, result than supra. stated in McGuire that the L. this court construed sec 25 R. A. quotes the also from Sul- court tion 4 of of of the Constitution article question livan of Case to the effect the such cor as follows: “And which was upon dependent venue in the is Constitution corporation] may poration [foreign in be sued foreign corporation doing the in the business any county it does business.” county suit provision readopted lan was evidently ing in stat- said what was not intended By guage 1901, § in the of Constitution was Constitution readoption construction such of restrictive, respect. not in this of The effect placed upon the thereby adopted by the of became Constitution in the Sullivan Case also observed conven constitutional Case, supra. Lewis In is held both it Case, supra, tion of 1901. The Sullivan apply foreign, corporation to designated has when the clearly provision this be manda construed place a authorized and an following quoted tory and restrictive. agent in this state. for convenience: In the case Goggins, of Southern R. Co. v. essential “But it must be observed that the question involved fact, upon liability other which related to respects the venue of a suit as the the depends, is, that business’ counties it -‘does precinct respects of a and not as counties; essential reiv- such fact itself. The we are now con tiering personal action, it liable to a in the sidering proper county. relates state, prior Constitution, courts of quoted expression a of the above toas, it within the teas Case; from the Sullivan also from other cas changes, Con- state. The material tvMch the applied only corpora es to domestic corporation works, stitution are that the be- tions, and contained a statement to the ef comity any liable m in which it comes to suit may fect that a in which tort arose a process may business, be .serv- does ed, compeMng be the Venue of a suit a cor upon appear, it to an poration. The citations anywhere relate domestic in the state. The words of corporations, plain unambiguous. and the rule as to them are statute There correctly interpretation, there stated. No effort is is no construction or made room for explain policy inquiry provi- to differentiate or into of or for an sion, the Sullivan Case. Goggins may supposed This statement in the or-the which it be motives Case not point. adoption. pres- speaks there cited induced It of Sullivan its Case has been many ent, past, disapproved. times and never not of the or of the future. The portion words, ing, business,’ quoted equivalent This more v. expressly it of was ‘does in mean- likewise in our expressive thought, of of recent case the same Jefferson Island Salt Co. Longyear, ‘doing the words flect these signification, business.’ Unless we de- plain approves from their stated that words and usual the court such import quotation. quoted subject, questioned or into the It will be Constitution observed it is also there, practically we not found are constrained to words our cases on this departed the conclusion and nowhere hav- from nor ing state, respect. a known of in the It related an personal aetion, assumpsit, tort; to a action and not in but the beyond business, unless, applied expressly rule stated is to all actions of suit, personal time ing it commencement nature. do- This must now be comity, business in such is treated as authoritative and conclusive to the made, respect immaterial the contract was effect that or under consideration restrictive, the cause on which the suit section 232 is and venue statute founded, past is poration at some time when the cor- in conflict with it cannot stand. county.” application loas business in sueh for rehear- ing When the Case must be overruled. McGuire, supra, Co. v. Mach. stat- Justices concur.