Abraham Bros. v. Southern Ry. Co. , 149 Ala. 547 ( 1906 )

TYSON, C. J. —

Rule 12 of practice in the circuit and inferior courts of common-law jurisdiction, prohibiting a plea in abatement to' be received, if objected to> unless filed within the time allowed for pleading, has nO' application to a plea in abatement, which is in substance amendatory of former pleas filed within time, to which demurrers had been sustained, with leave granted to amend. To hold otherwise would deprive a defendant of the right of amendment secured by section 3304 of tlie Code of 1896. .Furthermore, if the plea,- against which the motion to strike was aimed, the overruling of which is sought to he reviewed, should not be regarded as amendatory of former plea-i, the court in refusing to strike it, on tin1 state of record as it- then was, -did hot abuse its discretion. — Harkins v. Armour Packing Co., 105 Ala. 545, 17 South. 16, and cases there cited.

It is shown, both by the averments of the plea and the testimony offered in support of it, that the defendant had no line of railroad in .the county .of Montgomery, wheie this action was brought, and did no business therein other than to have in the city of Montgomery, in said county, two soliciting agents — one a freight agent, to solicit shipments of freight to and from that territory, to be routed by the shipper so as to pass over defendant’s lines of road outside of and beyond the limits of that county; the other, a,traveling passenger agent,whose sole duty was to solicit passenger tiaffic. Neither of these agents were authorized to enter into any contract or contracts t'o bind the company, nor to- receive and collect money for the transportation of freight or passengers. The-question presented is whether this state of facts shows that defendant, a foreign corporation, was “doing business”'in'the county of Montgomery, within the meaning of section 232, art. 12,' of the Constitution, dr section 4207 of tiie Code of 1896; the provision of the former fixing tli,e venue of suits against such corporations “in any county where it does business by service of process upon an. agent anywhere in the state,” and that of the latter “in any .county .in.which it- does business by agent.” It is obvious that the words “does business-,” as used in the constitutional provision and the statute, must have the 'same meaning. — Sullivan v. Sullivan Timber Co., 103 Ala. 371, 15 South. 941, 25 L. R. A. 543. And upon the principles declared in Beard v. The Union & American Publishing Co., 71 Ala. 60, we feel constrained to hold that tlié act of the defendant in constituting agents, with no power or authority to bind it, but simply to- solicit traffic for it, was not “doing business,” within the constitutional or stat-

utory provisions. See, also, International Cotton Seed Oil Co. v. Wheelock, 124 Ala. 367, 27 South. 517.

Affirmed.

D.owdell, Anderson, and McClellan, JJ., concur.