Danforth v. Nabors , 120 Ala. 430 ( 1898 )

TYSON, J.

The appellant was sued by the appellees in the circuit court of Blount county upon a promissory note. The only plea filed was a plea in abatement setting up the defense that he was not a resident of Blount county at the commencement of the suit. There was a replication filed to this plea in which it is averred that the house occupied by appellant as a residence at the commencement of the suit was and now is located partly in the counties of Blount and Jefferson, and “that defendant has not filed a statement in writing setting forth the locality of his residence and the lines affecting the same, together with the county selected by him as his place of residence as in such cases provided by the act of the legislature of Alabama, Acts 1894-5, p. 346.” Ap-. pellant rejoined to this replication “that he had acquired his residence and selected Jefferson county as his place of residence before the passage of the act of 1894-5.” The court sustained a demurrer to this rejoinder, and the appellant assigns as error the ruling of the court in this respect. Notwithstanding this adverse ruling to appellant, the record discloses that he was permitted without objection to introduce evidence upon which he relied to establish his selection of Jefferson county as the county of his residence. The uncontroverted evidence shows that appellant has occupied since August, 1892, as a residence.a dwelling house to which is attached.a store room or house, located on the county line between the counties of Blount and Jefferson. This line runs through the corner of appellant’s dining room and near the center of the store room, so dividing the residence as that the parlor, all bed rooms, hall, all the dining room, except a very few feet in the northwest corner thereof is in Jefferson county. The store room which is connected with the dining room, and one of the bed rooms is so divided by this line as that about two-thirds of it is in Jefferson county. The barn, stables and cook-room are entirely located in Jefferson county. That prior to the time appellant built this house and moved into it he occupied a rented house located entirely in Jefferson county, and since his occupancy of this one he has registered, voted, worked the public road and paid taxes on his personal property in that county. Appellant knew of the location of the county line, but had never filed in the office of the probate judge of Blount or Jefferson county a statement in writing setting forth the locality of his residence and of the line effecting the same, together with the county selected by him for his residence, and had never exercised any rights of citizenship in Blount county, but had claimed Ms residence and citizenship in Jefferson county. Section 2640, Code of 1886, requires that appellant must be sued in the county in which h.e resided at the commencement of the suit if he has within the State a permanent residence. The only question presented here for consideration is whether appellant resided in Blount or Jefferson county.

There can be no controversy that prior to the passage of the act of Februaxy 1, 1895. (Acts of 1894-95, p. 346, Code of 1896, § 1559), his x’esidence, under the evidence, was in Jefferson county, and he had the right to insist upon being sued in tliat coxxnty. Did the act work a change in his status so as to deprive him of this defense by his failure to comply with its provisions?

The act under consideration provides that “when the residence of any person is pax'tly in two or more different counties * * that such person may select the county of his x'esidence,” and to this end file a statement in writing in the office of the judge of probate of the county selected setting forth the locality of his residence and the lines effecting the same; when this is done, the county named ixx the statement shall be the established county of his residence. The pxxrpose of this act is manifestly to fuxmish evidence by the records of the judge of probate of the couxxty selected by pex’sons who may reside on the line between two or more counties, when its provisions have been complied with. In the case under consideration there was no compliance or attempted compliance'and, indeed we might add, that by the terms of the act, there was no necessity for a compliance by appellant since he had already made his selection prior to its passage. While it was the pxfivilege of appellant to avail himself of the provision of the act, it was not imperative upon him to do so. The' demurrer to the x'ejoinder should have been overruled.

The judgment of the circuit court is reversed, and the cause x’emanded. • •

Reversed and remanded.-