66 Ala. 472 | Ala. | 1880
This is an action on the case, for the negligent killing a mare, the property of the appellant, by the servants of the appellees, corporations of the State of Georgia, operating a railroad in this State. The killing occurred on the 8th of June, 1876; and it is averred that, from that time, to the commencement of suit, the appellees had a known place of business, and authorized agents in the county of Lee in this State. A demurrer was interposed to the complaint, on the ground that the action was barred by the statute of limitations, not having been commenced within one year from the time of the injury. The demurrer was sustained, and this ruling of the Circuit Court is the only error now assigned.
The present statute of limitations is directed to the causes, not to the forms of action; and there is a period prescribed, within which each cause of action, whether ex delicto, or ex contractu, or for the recovery of real estate, or for the detention or conversion of personal property, is barred. Actions for negligent injuries to property, real or personal, there being no contract between the parties, are embraced in the sixth subdivision of section 3231 of the Code of 1876, and are barred, if not commenced within one year from the time of the injury.—Roundtree v. Brantley, 34 Ala. 544; Polly v. McCall, 37 Ala. 20. It follows, this is of the class of causes
The suing out a summons, whether it be executed or not, is the commencement of a suit, avoiding the bar of the statute of limitations. — Code of 1876, § 3246. Unless we refer to the summons, and assume that it is an original, not an alias or pluries, and. that its date is the day of its suing' out, it cannot be known that the suit was not commenced within a year from the time of the injury to the mare. A demurrer is addressed to the matter apparent on the face of the pleading to which it may be taken; and in aid of it, the court cannot look to fact's which may appear in other parts of the record; certainly not to facts which are disputable. The date of the summons is not conclusive evidence of the time of the commencement of the suit; nor is the form of the summons conclusive that it is an original, not an alias or pluries. If in form an original, it may be amended, on proper evidence, showing that it is in fact an alias; or, if it become necessary, that it does not bear the true date of its suing out.—Steamboat Farmer v. McCraw, 31 Ala. 659, On demurrer, questions of law only can be considered — not questions of fact, which may be controverted. — Mansel on Demurrer, 96.
Independent of this consideration, the statute of limitations is a defense which must, in courts .1 law, be specially pleaded. For, unless it be pleaded, the plaintiff has not the opportunity of replying that he is within some one of the exceptions to the statute, or any other matter which would prevent the bar from attaching. — Ang. Lim. 285.
It is apparent the Circuit Court erred in sustaining the demurrer to the complaint. We deem it proper, however, to pass upon the question which has been fully argued, and which will probably be decisive of the cause. That question is, whether the appellees are within the influence of the exception to the statute of limitations, expressed in section 3231 (Code of 1876): “When any person is absent from the State, during the period within which a suit might have been brought against him, such period or periods of time must not be computed as a portion of the time necessary to create a bar under this chapter.” It is absence from the State — a state of being without its jurisdiction — not the domicile or residence of the party subject to suit, that forms the matter of this exception. A citizen of another State, inflicting a negligent injury on property, may, without a change of his domicile, and with no intention to change it, remain here for the full period of twelve months ; the statute would operate a bar in his favor, as fully as if his domicile was here. _ This may be the domicile ; but, if the party liable to suit is ab
The constitution requires that foreign corporations, doing business within this State, shall have at least one known place of business, and one authorized agent or agents therein, and subjects them to suit in any court, where they may do business, by the service of process upon the agent any where in the State. — Const. Art. 14, § 4. The averment of the complaint is explicit, that the appellees had, in the county of Lee, a known place of business, and authorized agents, from the time of the injury to the commencement of the suit. There was continuous presence here, though the domicile of the corporations was in Georgia — continuous liability to suit, and all parties having claims against them were unembarrassed because their domicile was elsewhere. The true test of the running of the statute of limitations, is the liability of the party invoking its bar to the service of process during the whole of the period prescribed. If there is the continuous liability, the residence or domicile of the party is immaterial.—Express Co. v. Ware, 20 Wall. 543. We are of opinion, if, for the period of twelve months after the cause of action accrued, and before the commencement of suit, the appellees had a known place of business, and authorized agent or agents within the State, the statute of limitations is as available to them, as if they were domestic corporations, or natural persons here residing.
Reversed and remanded.
