Rich v. Brewer , 205 Ala. 343 ( 1921 )

This action was for the wrongful killing of the plaintiff's intestate, which occurred in Lowndes county, against several defendants, and could have been properly brought in said Lowndes county or any other county in the state where either of said defendants had a permanent residence. Section 6110 of the Code of 1907. The trial court in the case at bar, by giving, at the request of the defendants, charges (which we number) 1, 2, and 12, seems to have proceeded upon the theory that plaintiff could not recover against defendant Varner, who resided in Lowndes county, if his codefendants, or one of them, who resided in Montgomery county, were in no wise liable or responsible for the wrongful death of the intestate. The question of venue is a defense in abatement and not in bar of the action, and is not available by charges unless specially pleaded, and then the verdict should respond to such a plea and not to the merits of the case. The trial court, having erroneously given the foregoing charges, properly granted the motion for a new trial.

It is suggested in the brief of counsel for appellant that Varner interposed special pleas as to the venue of the action against him and to which the court erroneously sustained a demurrer, and he could therefore only raise the question by charges. In the first place, if the court erred in holding these pleas bad, we do not justify the giving of these charges as a substitute for said pleas, and in probably producing a verdict for Varner on the merits, simply because his codefendants may not have been liable under the evidence, and notwithstanding he (Varner) may have been guilty of the wrongful act. Moreover, we are not prepared to say that the pleas of Varner as to venue were open to him so long as the Montgomery county defendants, or any one of them, remained in the case. Eagle Iron Works v. Baugh, 147 Ala. 613, 41 So. 663. Section 6110 of the Code was so construed as section 4205 of the Code of 1896 and was brought forward to the present Code without change. Section 2504 of the Code of 1907 authorizes a recovery against one or more defendants jointly sued, but makes the plaintiff liable for cost to those against whom he does not obtain a judgment.

The judgment of the circuit court is affirmed.

Affirmed.

McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.