Preston Motors Corporation v. Griffin

BRICKEN, P. J. (transferred from Foster, J.). The judgment in this case was rendered October 18, 1922. Ninety-seven days later, viz. on January 23, 1923, a bill of exceptions was “presented.” More than 90 days having elapsed from the date of judgment before the bill of exceptions was “presented,” this bill of exceptions presents for review only the ruling on the motion, if it presents anything. Yolande Coal & Coke Co. v. Norwood, 4 Ala. App. 390, 58 So. 118; General Ordnance Co. v. Bowen, 209 Ala. 574, 96 So. 753; Cheek v. Odom, ante, p. 81, 100 So. 782. So far as the appeal from the judgment is concerned this court must strike the bill of exceptions ex mero mota. Rowe v. State, 17 Ala. App. 18, 81 So. 354; Williams v. State, 205 Ala. 76, 87 So. 530. The bond for “costs of appeal” does not inform us what appellant attempted to appeal from, the judgment or the order overruling the motion for a new trial. The record contains the judgment and the order on the motion. Appellant could have appealed from either or both. Dees v. Lindsey Mill Co., 210 Ala. 183, 97 So. 647, but the bond indicates that only one appeal was taken, as it only secures the costs of appeal, not appeals. We will consider it as an appeal from the original judgment only, which leaves for review the ruling of the court below sustaining the demurrer to the' plea in abatement filed by appellant. For aught appearing in the plea in abatement, the appellant was lawfully doing business in the'state of Alabama in accordance with the laws of this state regulating the doing of business by foreign corporations. The cause of action set out in plaintiff’s complaint was a simple and ordinary business transaction of purchase and sale, between the plaintiff as an individual stockholder in another corporation trading such stock with the defendant for stock in the defendant corporation. Nothing appears in the plea to show a return or offer to return or tender of the stock in court. We have not been able to discover anything in the complaint or plea that requires a court of this state to exercise visitorial power or undertake the regulation of the internal affairs of the appellant. If the contract was ultra vires the courts of this state had authority to so declare and to give the appellant any relief that it may be entitled to. The plea filed is denominated a plea in abatement. It is filed under a special appearance made for the purpose of filing a plea in abatement to the jurisdiction of the court, and for no other purpose. If it be considered, which we deem it unnecessary to determine, that the *331 ■contract sued on was -ultra vires, it does not appear from the plea why the courts of this state would not have jurisdiction to determine that question in this case. There was no error in sustaining the demurrer to the plea, and the judgment appealed from is affirmed. Affirmed.