57 So. 754 | Ala. | 1911
In their complaint in this action, Avhich Avas begun before a justice of the peace in Montgomery county, the plaintiffs claimed of the defendant “the sum of $100 mesne profits as damages for a trespass committed by him” on certain lands in Lowndes county, “which are in the possession of the plaintiffs and upon which the defendant unlawfully entered, thereby putting a tenant upon said lands, renting the same out, and collecting from said tenant said rents for the years 1906, 1907, 1908, and 1909.” Judgment Avent for plain
It is suggested, and doubtless it was the case, that the court below was induced by the decision m Karthaus v. N. C. & St. L. Ry. Co, 140 Ala. 438, 37 South. 268, to hold that the plea in question was a plea to the jurisdiction of the court over the subject-matter of the suit, and that the right to plead it could not be waived in any manner. In that case the complaint contained counts in trover and trespass to realty. The plea, addressed to the complaint as a' whole, took the point that a suit for trespass to realty in Marshall county could not be maintained in the circuit court of Madison. The language of the court indicates the opinion that a plea of that character went to the power of the court in such sort that, if the facts stated in the plea were true, any judgment which the court might have rendered in favor of the plaintiff on the count in trespass would have been a nullity. The specific ruling was that the judgment be reversed because the trial court refused plaintiff’s offer to obviate the plea by striking the count in trespass, the court saying also that the plea was defective because not limited
Jurisdiction in personal actions depends upon two elements: The subject-matter to be adjudged; the presence in court of the parties Avhose rights are to be affected by the judgment. In respect of subject-matter the court acquires jurisdiction by the act of its creation ; it'is inherent in the constitution of the court. The other element it acquires by its own act, by its process properly issued and served, or by voluntary appearance of the defendant. — Lamar v. Commissioners' Court, 21 Ala. 772. “By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought. — Cooper v. Reynolds, 10 Wall. 316, 19 L. Ed. 931.
Originally, venue entered into the question of jurisdiction in all cases, and all actions Avere local. This arose out of the nature of trial by jury in AA’hich the jurors, Avho Avere but Avitnesses, were taken from the aúoíii age because they Avere presumed to know the parties and the facts. Later, Avhen it became necessary to meet the case of debtors who had learned to run aAvay, transitory actions were invented. The courts finally settled upon th:s distinction : If the cause of action Avas one that might have arisen anyAvhere, then the action Avas transitory ; but, if the cause of action could arise in one place only, then the action Avas local. Actions for trespass to land are still classed with local actions under
It is not perceived, however, that an action to recover damages for trespass to realty partakes in any degree whatsoever of the nature of an action in rem. In trespass, in this state where the title to land cannot be adjudicated in the action of trespass, the whole prayer is for reparation in damages to be coerced by process against any effects of the defendant to be found within the state. Not being brought for the specific recovery of lands, tenements, or hereditaments, the action is personal. — 3 Bouv. Inst. 2641; Hall v. Decker, 48 Me. 255; Linscott v. Fuller, 57 Me. 406. Inherently the action is personal, though the statute still leaves it in the same category as to venue with local actions. Its inherent character also determines the jurisdiction of the court as to subject-matter; its treatment, as a local action, under the statutes, determines the territorial jurisdiction, the venue.
Consent cannot confer jurisdiction of the subject-matter, for that is derived from the law. But when a court has jurisdiction of the subject-matter, parties may confer jurisdiction' of their persons by submitting them
It has often been held by this court that the statutory provisions fixing the local jurisdiction in both law and equity courts might be waived by a failure to make timely objection. In Freeman v. McBroom, 11 Ala. 943, the defendants had answered without objecting that the bill was filed in an improper chancery district; but on that fact the chancellor based his decree that the court could'not exercise jurisdiction in the cause. The decree was .reversed; this court saying: “The objection at most is only in abatement of the suit, without denying to the complainant a right to the redress which he seeks. It applies to the locality of the jurisdiction whose powers are invoked, and not to the case itself, as one to which chancery should lend its aid. * * * It has frequently been held, in suits at law, that when the court has no
We are therefore of opinion that the courts of Montgomery county having jurisdiction of the subject-matter of that class of cases in AAdiich redress is sought for trespass to realty, the fact that the trespass in the particu
Defendant (appellee), having been summoned to answer before the justice of the peace, failed to plead his isrivilege at the return term of the summons. There was one continuance at the instance of the plaintiffs, and another by consent of the parties. This, under the authority of our cases, was a waiver of the plea in abatement. — Noles v. Marable, supra; Beck v. Glenn, 69 Ala. 121. And the right to plead in abatement, having been once abandoned in the justice’s court, cannot be revived by an appeal to the circuit court. On such appeal the case must be tried according to equity and justice, without regard to any defect in the summons, or other process, or proceedings before the justice. — Code, § 4720; Thompson v. Clopton; Noles v. Marable, supra. It may be that the justice of the peace had a discretion to allow the plea under the rule laid down in Vaughan v. Robinson, 22 Ala. 519, and Hawkins v. Armour Packing Co., 105 Ala. 545, 17 South. 16; but that discretion, having been exercised against the defendant, could not be made the subject of review in the circuit court where the case stood for trial de novo. The plaintiffs, on the faith of the justice’s ruling, had tried their case on the merits, and had gone to the circuit court prepared presumably to try their case again on the same issues. They had suffered delay, and it may be presumed had incurred costs in preparing for these different trials. These consequences must be charged, not to the ruling of the jus