96 Ala. 435 | Ala. | 1892
It seems to be well settled by the decisions of this court that, on appeal or statutory certiorari from the judgment of a justice of the peace, the want of jurisdiction in the primary court can not be availed of unless objection thereto has been taken before the justice.— Glaze v. Blake. 56 Ala. 379; Burns v. Henry, 67 Ala. 209; Western Railway Co. v. Lazarus, 88 Ala. 453.
When the lack of jurisdiction appears from the complaint filed in the justice’s court, advantage of the fact may be taken by motion to dismiss the action, and where it does not appear on the face of the complaint, the facts showing a want of it may then be set up by plea in abatement, denying jurisdiction. — Burns v. Henry, 67 Ala. 210, and authorities there cited.
In the case at bar it did not appear from the complaint that plaintiff’s claim was in tort and for damages in excess of the justice’s jurisdiction in that character of action, but it might well have been averred in a plea in abatement, in effect, that the gravamen of the action was the wrongful conduct of the defendant resulting in the death of the live stock for the loss of which damages are claimed, and such plea would have efficiently raised the issue of jurisdiction;. or, it would seem, that an informal objection taken after the evidence had disclosed the cause of action as arising upon an alleged tort of the defendant, would have been sufficient to present the question of jurisdiction in such sort that defendant would not be precluded from insisting upon it on appeal. Knowles v. Steed, 79 Ala. 427. But no objection, in any form, having been taken to tlie justice’s jurisdiction while the case was in that court, the motion to dismiss the case made on that ground in the City Court was properly overruled.
Nor do we think that the trial court erred in its rulings on the question of the alleged departure in the City Court from the case made in the justice’s court. As was said in Freeman v. Speegle, 83 Ala. 191: “The proper mode of raising this question of departure was by motion to reject the complaint filed in the Circuit [_OityJ Court, or to strike it
’ There can be no doubt that tbe burden of negativing negligence, in cases like tbis, is upon tbe defendant.— Ga. Pac. Ry. Co. v. Hughes, 87 Ala. 610; A. G. S. R. R. Co. v. Moody, 90 Ala. 46; A. G. S. R. R. Co. v. Moody, 92 Ala. 279. The case of Montgomery & Eufaula R. R. Co. v. Perryman, 91 Ala. 413, to wbicb our attention is invited, is manifestly distinguishable from tbe present case.
Another assignment of error is based upon tbe refusal of tbe trial court-to allow tbe defendant to introduce and examine tbe plaintiff as its own witness. Tbe facts in this connection are set forth by way of an addition to tbe bill of exceptions as presented for tbe signature of tbe judge, and in respect thereto tbe recital is that “Tbe court signs tbe following bill of exceptions with tbe following addenda.” We have do doubt but that all matters stated in these addenda, proper in themselves to be stated in tbe bill of exceptions, are as much a part thereof as if they bad been incorporated in tbe bill of exceptions as originally written out. It is equally clear, we think, that tbe facts and circumstances under which tbe court refused to allow defendant to examine tbe plaintiff were matters proper to be stated in tbe bill of exceptions. These facts and circumstances were tbe following: “Joe Barker, tbe plaintiff, was introduced as a witness for himself, and was examined in chief and cross examined at length, examined in rebuttal, and re-examined by counsel for defendant.” It is apparent from bis testimony, as set out in tbe bill of exceptions, that bis examination covered not only tbe facts necessary to make out a prima facie case for himself, but also facts tending affirmatively, and aside from tbe presumption of law in such cases, to show negligence, on tbe part of tbe defendant. Tbis being so, tbe defendant bad a right, of wbicb doubtless it availed itself, to cross-examine tbe witness on every phase of tbe case. Certainly, tbe presumption that every pertinent fact was elicited on tbe cross-examination will be indulged where, as here, no intimation was given tbe court that defendant desired to examine tbe witness as to new matter not proper to be elicited on cross-examination. Under these
As quite recently decided by this court, tbe word “reckless,” as employed in tbe complaint in tbis case, should be construed to mean no more than a want of that degree of care which tbe law required of defendant’s employees in tbe operation of tbe train which collided with plaintiff’s cattle. With this construction, tbe complaint is not open to tbe objection of repugnancy which is taken by the demurrer. Kansas City, Mem. & B’ham. R. R. Co. v. Crocker, 95 Ala. 412.
Tbe judgment of tbe City Court is affirmed.
