110 Ala. 395 | Ala. | 1895
This was an action of detinue, instituted by the appellant against the appellee. The ap-pellee pleaded in abatement, alleging that before and at the time of the commencement of the suit it was residing at Eufaula, in the county of. Barbour; and that neither at the time of the commencement of the action, nor since, was it doing business in the county of Montgomery by agent. The appellant demurred to the plea, assigning several causes which may be thus enumerated first, that it was not shown by the plea that the act complained of did not occur in the county of Montgomery ; second, that the action is not founded on contract; third, that the plea is inappropriate to the action; fourth, that detinue is not of the class of actions, which
The statute (Code, § 2640) provides, that actions on contracts, except- as may be otherwise provided, must be brought in the county in which the defendant has a permanent residence; and that all other personal actions may be brought in the county of the permanent residence of the defendant, “or in the county in which the act or injuries complained of may have been done, or may have occurred.” The predecessor of the statute, required that all personal actions, all actions not “for the recovery of real property or the possession thereof, or.for a tresspass thereto,” should be brought in the county of the permanent residence of the defendant, if he was a resident freeholder or householder of the State. Code of 1876, § 2¡)28. A comparison of the two statutes indicates the scope and effect of the later statute. As to personal actions, by which is intended all other than “actions for the recovery of land, or the possession thereof, or for a trespass thereto,” if not founded on contract, they may be brought within the county of the pennanent residence of the defendant, or in the county in which the act or omission complained of may have been done, or may have occurred. In this class of actions the plaintiff may elect the forum of suit — he may sue in the county of the permanent residence of the defendant, if the defendant has such residence, or he may sue in the county in which the tort was committed ; in which the cause of action arose.
The gist of the action of detinue is the wrongful or tortious detention of the property, not the original caption or convertion. — 1 Brick. Dig. 57Í, § 2; 3 .Brick. Dig. 307, § 15. Wherever this may occur, at the election of the party aggrieved, may become the place of suit. As the plea does not negative the - fact that the wrongful detention of the chattels occurred in the county of Montgomery,- it was subject to the demurrer. It seems to be founded on the misconception, that the statute, (Code, § 2642), which authorizes a suit against a corporation in any county in which it may do business by agent, is the only authority for a suit against a1 corporation without the county of its domicil. This may
The city court erred in overruling the demurrer to the plea; it should have been sustained. This conclusion renders unnecessary a consideration of the other assignments of error.
Reversed and remanded.
