Drennen & Co. v. Jasper Investment Co. , 153 Ala. 322 ( 1907 )

HARALSON, J.

— The suit was by the Jasper Investment Company, appellee, in the law and equity court of Walker county, against Drennen & Co., the appellants, and W. D. Leatherwood, for the conversion of two mules. Leatherwood lived in Walker, and Drennen & Co. lived in Jefferson county.

• Drennen & Co. had obtainned a judgment, in the cir: cuit court of Walker 'county, against the Jasper C'oal Company, for the- sum of $1,500, besides costs, and execution had issued thereon' against said company. It Avas ■levied- on Iavo mules and a lot of land, as the property- of- said company, ' The lands Avere sold under exe'eiltion,• but; the tAvo mules Were not sold. .J. H'. Hayes - -was the president of -said company and also of ■ the' plaintiff company.- After the execution had been"-'levied :on the mules, Hayes objected to their sale, ¡and claimed them' as the property of the plaintiff and there Avas an agreement that they might be sold at a private sale, provided an adequate price could be obtained’ for them, and that the amount so obtained for them,, was to be credited on the execution in the hands of the sheriff. Hayes 'testified, and there is no evidence to the contrary, that the mules belonged to the plaintiff? ipl' the time they were levied on; that Drennen & Co. got possession of them in the fall.of 1899,.without the consent of the plaintiff’ or of any of its authorized agents, and that they were worth, at the time, $300.

'1 The evidence further shoAVS, without conflict, that the mules were never sold! privately or publicly, but that Drennen & Co., when! they Avere demanded of them, stat: ed that they had given credit on the execution for $120, with $5 addd for expenses of getting the mules.

The summons and complaint was filed in the law and equity court of Walker county on the 23d of September, 1902, and on October 1st, of that year, it was executed bv the sheriff of Walker county, by serving a copy on the defendant, W. D. Leathenvood.

,- A copy of the summons and complaint came to the [lands of the sheriff of-Jefferson county, and Avas executed by him on the defendants, Drennen & Co., on the 27th of September, 1302. This copy, thus executed op Drennen & Oo. does not appear to have borne an endorsement, that it was “branch of the original, and for .one and the same cause of action,” as provided by section 3272 of the Code t>f 1896.

■ . The defendant’s Drennen & Co., moved the court to set aside and annul the service had upon them, upon the grounds, that they were citizens of Jefferson county and “no branch summons and complaint ivas issued and served on them as required by law.” ,¡

: The cause .ivas set for trial on; the 5th; of January, ■J-903, Avhen. the above ihotion, came on to bb heard,- and the court “quashed the service, and ordered a branch summons to be issued to' Drennen & Co.,” as;provided by statute; and. on-the same.day, the. clerk issued.another summons and complaint to. the defendants, Drennen ■& Co.,-,a copy of which is. set out in .the transcript;- This branch;.summons- and complaint; bqre the indorsement by the clerk of the law and-equity, court, “Branch g. ,C, The State of-Alabama, Walker County. Walker County Law and. Equity Court, Jasper Investment Company, Plaintiff, V- Drennen & Company: Summons and Complaint, filed- 23d day of September, 1902.’;’ 1† •was received by the sheriff of Jefferson county on Janr uary 6, 1903, and executed the same day on the dpfpndr qnts, Drennen.& Co.,- as individuals and as a partnership. ■ . ■ • :.- -•:

. The defendants, Drennen & C'o., renewed their motion to set aside and annul said servivce on the same grounds as originally filed, Avhich motion the court overruled* to •which ruling defendants excepted. ■ • -■ .

,.- The branch summons and complaint sent from. Walk-pr to Jefferson county* shows the identity-of the- cause pf action against Leatherwood and, the Drennens* and this was substantially all that the statute requires. In Mayo v. Stoneum, 2 Ala. 390, in-construing this/statute, where the branch writ was indorsed, “Branch Writ,” the court said: “The correct practice under the statute, is, to make the writ sent to another county for service, a counterpart of that which is to be executed in the county where it is returnable; indorsing thereon the identity of the cause of action.” In Boardman v. Parrish, 56 Ala. 55, it was again said: “We do not doubt the correct practice, under the present, as it was settled under the former statute, is to make each summons a counterpart of the other. — Mayo v. Stoneum, 2 Ala. 390. A variance between them is available, however, only by plea in abatement, filed at the return term of the process, as required by the rules of practice; not by a motion to strike from the files, made at a subsequent term, when the cause is called for trial.” The writ sent to Jefferson county was a counterpart of the one issued to he served in Walker county. There was no error in overruling the motion to strike.

It is made indisputably to appear by the testimony, that the mules in question originally belonged to the Jasper Coal Company, a corporation; that'Hayes was president of that company and also president of the plaintiff company, which was also a corporation. The plaintiff’s title to the mules was derived, if at all, from the Jasper Coal Company, and the manner of the acquisition of asserted title was by Hayes, as president of the Jasper Coal Company, consenting with himself, as president of the plaintiff company, that the latter compauy should become the owner of the mules in payment of á simple contract debt claimed by the plaintiff company against the Jasper Coal Company. In other words, Hayes, as president of the debtor company, transferred the mules to 'the creditor company, without having the authority to do so from the board of directors of either company. The title to the mules could not be transfers ed in this way, in the absence of all evidence tending in the remotest degree to show an acquiesce or ratificaiton of the governing bodies of either or both corporations.

The affirmative charge for the defendants should have been given.

Reversed and remanded.

Tyson, C. J., and Simpson and Anderson, JJ., concur.