Rand v. Gibson , 109 Ala. 266 ( 1895 )

HARALSON, J.

The venue of suits in this State is regulated by Section 2640 of the Code, which covers all classes of suits, therein so plainly specified, as scarcely to admit of mistake in their institution. The first class embraces all actions on contracts, which must be instituted in the county in which the defendant, or one of the defendants, resides; the second, all other personal actions, if- the defendant or one of the defendants has within the State a permanent residence, which may be brought in the county of such personal residence, or in the county in which the act or omission complained of may have been done, or may have occurred ; and the third, for the recovery of land, or of the possession thereof, or for a trespass thereto, which must be brought in the county where the land lies ; and a summons issuing contrary to the provisions of the section is required to be abated on the plea of the defendant. In this second class the action of detinue is included, and it may be instituted in any county where the property sued for is found in the hands of the party against whom the suit is brought, away from the county of his residence. A plea in abatement, that he has a permanent residence in another county, is no answer to the suit. The replication of the plaintiff in this case to the defendant’s plea in abatement, setting up his residence in Lawrence county, were well pleaded, and the demurrers to them should have been overruled.

The Code, Section 2833, requires that the court, while the causéis in progress, on motion of the party, “must permit an amendment of the complaint by adding new parties plaintiff, or by striking out or adding new parties defendant, upon such terms and conditions as the justice of the case may require.” The plaintiff moved the court, while the cause was in progress, to amend his complaint by adding the names of the Memphis & Charleston Railroad Company and Jesse Moody as parties defendant. The court asked if they had any claim to the property sued for, other than as bailees or carriers, and being informed that they did not, refused to allow them to be made parties. So far as was made known, the court was not justified in disallowing the proposed amendment. It does not appear that the partiesproposed to be added as defendants were not jointly liable with the defendant, at the commencement of the suit. — Burns v. Campbell, 71 Ala. 272; Graham v. Meyers, 74 Ala. 432.

The excluded evidence was pertinent and admissible to support the replications, if they had been allowed, as they ought to have been. When hereafter allowed, the same rulings will not be made in the rejection of this evidence, and it is, therefore, unnecessary to pass on the rulings excluding it.

The cause was tried by the court without the intervention of a jury, at a non-jiiry term. After the plea in abatement had been sustained, the court proceeded to ascertain the value of the thirteen bales of cotton, which were in the possession of the plaintiff under bond executed by him under and according to the provisions' of Section 2718 of the Code, together with damages for its detention, and rendered judgment against the plaintiff and the sureties on his detinue bond, for the amount so ascertained. On the trial of this issue, as to the value of the cotton, the plaintiff proposed to prove that defendant was not, but that his wife was, the owner of the cotton.. This, the court properly declined to to allow him to do. We have ventured this last expression in view of another trial, if it shall be had; and, for the same purpose, will add, that in rendering a judgment in such a proceeding, it is not proper to render it against the sureties on the detinue bond. The act of February 28th, 1887, (Acts 1886-7, p. 131, Code p. 603), and Section 2721 of the Code, point out very plainly the proper practice in such cases.

Reversed and remanded.