65 So. 708 | Ala. Ct. App. | 1914
The motion to dismiss the appeal because the transcript was not filed in time is without merit. The appeal was taken, as shown by the certificate of the clerk, on the 29th day of July, 1913, and the transcript filed here February 2, 1914, the first day of the first call of the division to which it was returnable after the appeal was taken, and was therefore filed without prejudice to appellee, resulting from delay, at the earliest call at. which it could have been submitted. —National Union v. Sherry (Sup.) 61 South. 944; Sloss-Sheffield Steel & Iron Co. v. Webster (Sup.) 62 South. 764.
Suit was brought in the justice court of “Red Bay beat,” Franklin county, Ala., by the appellant, and summons was personally served on appellee, who was temporarily in the beat, but whose permanent residence was in Fayette county, Ala. A motion or plea in abatement was filed in the justice court by the appellee and renewed in the circuit court where the case was pending on appeal, to dismiss the suit on the ground that the justice court in which the suit originated was without jurisdiction, for that the appellee (as defendant) had
The plea in abatement, or motion to dismiss, Avas based on the provisions of section 4648 of the Code. The action Avas in tort, and the cause of action arose in Red Bay beat in Franklin county, and suit could properly be brought in that precinct under the statute fixing the venue of actions in justice courts. — Code 1907, § 4648. The only question, then, is whether or not, if the defendant, avIio Avas a resident of another county in the state, was found in that precinct, personal service could properly be had upon him, so as to acquire jurisdiction of the person. The suit Avas commenced by summons before a justice of the peace having jurisdiction of the cause of action, and he had the legal right to entertain the suit and issue process on it, and if the defendant was found Avithin the jurisdiction of the court and process served upon him. by a duly authorized officer, Ave can see no good reason for holding that this would not be a valid service giving jurisdiction over the person.
The following authorities will he found, in.the analysis of the reasoning used, to support our holding and views expressed on the question presented: Hoge v. Herzberg, 141 Ala. 439, 37 South. 591; Judge v. Washburn Milling Co., 1 Ala. App. 470, 56 South. 2; Staples v. Steed, 167 Ala. 241, 52 South. 646, Ann. Cas. 1912A, 480; Woolf v. McGaugh, 175 Ala. 299, 57 South. 754.
Reversed and remanded.