120 So. 165 | Ala. | 1928
Lead Opinion
Appellant was a foreign corporation, and was sued in this case for conversion of two automobiles, alleged to have occurred in Madison county, Alabama. Appellant pleaded in abatement that it was a foreign corporation, and at the time suit was filed it had a known place of business in Alabama, to wit, Birmingham, and that it was not doing business by agent in Madison county at the time the cause of action arose, nor at the time the suit was begun. Plaintiff demurred to this plea.
This court in the case of Case Threshing Mach. Co. v. McGuire,
There is no requirement of law that, to entitle defendant to the benefit of this plea, it must allege that it had a known place of business in Alabama at the time the cause of action arose. This is wholly immaterial.
Upon the foregoing authorities it is apparent that the plea in abatement was in good form, and not subject to the demurrer.
Appellee answers by contending that after such demurrer was sustained, plaintiff amended by adding additional counts to the complaint, and that such plea in abatement was not renewed to such additional counts, and cites authorities. The cases cited do not affect this question. They do not relate to pleas in abatement, but in bar. The plea in abatement went to the right to sue appellant in Madison county. That question need be determined but one time in the trial of one case. Each amendment is not the institution of a new suit. After the court has sustained demurrer to a plea in abatement going to the venue, it is not necessary at each stage thereafter to renew the plea in abatement; further pleadings and proceedings do not waive the error. Sec. 9517, Code; Terminal Oil Co. v. Planters' W. G. Co.,
For the error of the court in sustaining demurrer to appellant's plea in abatement, the case must be reversed. It is, therefore, unnecessary to consider other assignments of error.
Reversed and remanded.
ANDERSON, C. J., and GARDNER, and BOULDIN, JJ., concur.
Addendum
In the case of Sullivan v. Sullivan Timber Co.,
"But it must be observed that the essential fact, upon which the liability to suit in other counties depends, is, that it'does business' in such counties; as the essential factrendering it liable to a personal action, in the courts of thestate, prior to the Constitution, was, that it was doingbusiness within the state. The material changes, which theConstitution works, are that the corporation becomes liable tosuit in any county in which it does business, and the processmay be served, compelling it to appear, upon an agent anywherein the state. The words of the statute are plain andunambiguous. There is no room for construction or interpretation, or for an inquiry into the policy of the provision, or the motives which it may be supposed induced its adoption. It speaks of the present, not of the past, or of the future. The words, 'does business,' are equivalent in meaning, and expressive of the same thought, as the words 'doing business.' Unless we deflect these words from their plain and usual signification, or import into the Constitution words not found there, we are constrained to the conclusion that a foreign corporation having a known place of business in the state, is not subject to a personal action, in a county beyondsuch place of business, unless, at the time of the commencementof suit, it was doing business in such county, and that it is immaterial that the contract was made, or the cause of actionarose, on which the suit is founded, at some past time when thecorporation was doing business in such county."
When the opinion in the case of Case Threshing Mach. Co. v. McGuire, supra, stated that the clause was permissive, and not restrictive, and at the same time held that a foreign corporation could not be sued in a county where a tort was committed, as provided in section 10467, we think the opinion was correct in its conclusion, but failed to state properly the interpretation of the Constitution as embraced in the Sullivan Case, supra, and failed properly to construe the case of Lewis v. International Ins. Co.,
In the case of Southern R. Co. v. Goggins,
It results that the application for rehearing must be overruled.
All the Justices concur. *684