General Motors Acceptance Corp. v. Home Loan & Finance Co.

120 So. 165, 218 Ala. 681, 1928 Ala. LEXIS 386

• Court: Supreme Court of Alabama
• Decided: November 8, 1928
• Docket: 8 Div. 962.
• Status: Published

Opinions

Appellant was a foreign corporation, and was sued in this case for conversion of two automobiles, alleged to have occurred in Madison county, Alabama. Appellant pleaded in abatement that it was a foreign corporation, and at the time suit was filed it had a known place of business in Alabama, to wit, Birmingham, and that it was not doing business by agent in Madison county at the time the cause of action arose, nor at the time the suit was begun. Plaintiff demurred to this plea.

This court in the case of Case Threshing Mach. Co. v. McGuire, 201 Ala. 203, 77 So. 729, held that under section 232 of the Constitution, the venue of a tort action against a foreign corporation is in a county where it was doing business when the suit was begun, and not in the county where the tort was committed. See, also, Ex parte Western Union Tel. Co.,200 Ala. 496, 76 So. 438.

There is no requirement of law that, to entitle defendant to the benefit of this plea, it must allege that it had a known place of business in Alabama at the time the cause of action arose. This is wholly immaterial.

Upon the foregoing authorities it is apparent that the plea in abatement was in good form, and not subject to the demurrer.

Appellee answers by contending that after such demurrer was sustained, plaintiff amended by adding additional counts to the complaint, and that such plea in abatement was not renewed to such additional counts, and cites authorities. The cases cited do not affect this question. They do not relate to pleas in abatement, but in bar. The plea in abatement went to the right to sue appellant in Madison county. That question need be determined but one time in the trial of one case. Each amendment is not the institution of a new suit. After the court has sustained demurrer to a plea in abatement going to the venue, it is not necessary at each stage thereafter to renew the plea in abatement; further pleadings and proceedings do not waive the error. Sec. 9517, Code; Terminal Oil Co. v. Planters' W. G. Co., 197 Ala. 429, 73 So. 18; Steele v. Booker,205 Ala. 210, 87 So. 203.

For the error of the court in sustaining demurrer to appellant's plea in abatement, the case must be reversed. It is, therefore, unnecessary to consider other assignments of error.

Reversed and remanded.

ANDERSON, C. J., and GARDNER, and BOULDIN, JJ., concur.

On Rehearing.