Hargrove v. J. Smith & Co., 1 Ala. 80

Hargrove v. J. Smith & Co.

1 Ala. 80 | Ala. | 1840

GOLDTHWAITE, J.

— 1. The first assignment of error is not supported by the record, so as to bring this case within the influence of previous decisions of this court. The declaration contains an averment that this note was made at Columbus, Geo.$ it may be, that this is the usual manner to designate the State of Georgia, if an abbreviation is used, but it would be extending inferences to a most unwarrantable extent, to presume it to be so to reverse a judgment. The legal presumption after verdict is, that the venue stated at the commencement of the declaration, extends to every fact alleged, unless contradicted by-express averments. In the case of Peacock v. Banks, (Minor 3S7,) the note was described as made payable at the Branch Bank of the State of Tennessee, in Nashville; in Evans v. Clark, (1 Por. 388,) the evidence shewed the note was made in. South Carolina; and in Evans v. Irvin, the same fact appeared from the record. As there is no averment that this note was made in Georgia, we must presume it made where the venue is laid, i. e. in Russell county, of this State. This presumption of course, disposes of the first assignment of error.

2. In Cummings v. Edmonson, (5 Por. 105,) we held that the statute of 1807, authorizing the courts to direct nonsuits in *82cases where the proper jurisdiction was sought to be evaded, contemplates two distinct classes of cases; in one of which, the court trying the cause has no discretion, but must nonsuit; but in the other, it can only do so when a sum is diminished beyond what is due, on purpose to evade the statute. It is certain that the statute referred to has not changed the rules of pleading, except that it gives to the courts power to interpose in a summary way, without a plea to the jurisdiction; but this power is given without restriciion only in those cases where the suit is commenced for a less sum than the Court can legally take cognizance of. When this declaration is examined no one can determine from it, where the note was actually made. We have already shewn that the prima facie intendment must be that it was made in Alabama; but it was entirely competent for the plaintiffs at the trial of an issue, under the averments of this declaration to show it to have been made in Georgia, or elsewhere, where the interest and incidental expenses may be of a different grade from what they are here, and these would be allowed in our courts certainly t.o any amount not exceeding the damages laid in the declaration.

We have not adverted to the facts that the defendant withdrew his plea, which, for aught that we can know, may have been to the jurisdiction of the court for the very cause in which he now seeks a reversal of the judgment. We have preferred rather to rest our decision on the ground that the jurisdiction of the Circuit Court is not denied by the appearance of the. record.

Let the judgment bo affirmed.