DeJarnette v. Dreyfus

DOWDELL, C. J. The affidavit in attachment on the ground of nonresidence of the defendant, aiid notice by publication as provided by the statute, gave the court jurisdiction of the subject-matter, and without any personal appearance of the defendant would have authorized a judgment by default, and of condemnation of the property attached, but no personal judgment. This jurisdiction could not be defeated by a plea in abatement .for want of jurisdiction of the person. The plea in abatement by the defendant, of residence and want of personal service, necessarily involved a denial, and the putting in issue of the ground of the attachment, viz., the nonresidence of the defendant. Under the statute it was not permissible.—Code 1896, § 565; Middlebrook v. Ames, 5 Stew. & P. 158; Garner & Nevill v. Johnson, 22 Ala. 494; Tucker v. Adams, 52 Ala. 254; Dryer v. Abercombie, 57 Ala. 497; Smith v. Baker, 80 Ala. 318. Section 565 of the Code of 1896 as adopted into the present Code (section 2966, Code 1907) has been revised so that now the ground of attachment may be put in issue (see note to section 2966, Code 1907). But the present suit arose prior to the change, and is controlled by section 565 of the old Code. The plea in abatement to the jurisdiction was properly overruled, and likewise the motion to quash based on the same grounds set forth in the plea, though the motion to quash might also have been overruled as not being the proper way of raising the question of jurisdiction. The plea and motion having been held bad, the defendant thereupon entered a general appearance and went to trial. This gave the court jurisdiction of the person, and it was not necessary for the judgment en [143] try to recite the fact of service by publication, as would have been required had there been no personal appearance and had the judgment been by default. The me tion to vacate the judgment- for want of such recital was therefore without merit. It was not necessary to the sufficiency of these counts of the complaint declaring on breach of covenant as to seisin, to allege eviction. It is sufficient as to covenant of seisin to negative the words of the covenant generally.—Copeland v. McAdory, 100 Ala. 553, 13 South. 545. In the counts declaring on a breach of covenant as to incumbrances, it was necessary to set out particularly in Avhat the incumbrance consisted, and that wa.s done in the present case; but it Avas not required to aver an eviction. As Avas said in Copeland v. McAdory, supra: ‘The covenant of freedom from incumbrance, like, the covenants of seisin and of good and lawful right to convey, is a covenant in praesenti; it is broken as soon as made, if there is an outstanding older and better' title, or an incumbrance diminishing the value or enjoyment of the land. * * * An eviction or dispossession of the grantee is not a constituent element oí the breach. It is the defect of title or the burden of an incumbrance, existing Avlien the conveyance is made, which Avorks the breach.” The existence of a public highway or a public easement over the property conveyed is a breach of the covenant against incumbrances.—Copeland v. McAdory, supra; Moore v. Johnston, 87 Ala. 220, 6 South. 50. In several of the counts of the complaint special damages are claimed, Avhich consisted, as alleged in the counts, of expenses incurred, by the plaintiffs in costs and attorney fees in the filing of a bill of injunction in [144] equity, against the city of Montgomery, to restrain the city from the: exercise of the right of a public easement over the lot in question, and to compel a restoration to the plaintiffs of a strip off said lot from which the plaintiffs had been evicted by the city. It is confessed in these counts, and s.o alleged, that the eviction of the plaintiffs by the city was by superior and paramount right and title in the city to said strip as a public easement, being a part of a public thoroughfare or street of the city. This being true, the filing of the bill was manifestly an unnecessary and useless expense. The filing of the bill being without the authority or consent of the grantor, the defendant here, the expenses in so doing could furnish no legitimate claim for damages. The bill was filed without any notice to the grantor, though it is averred in one of the counts of the complaint that notice was given after the filing of the bill, and a request made of the grantor to join in its presentation, but that the grantor refused to do so. This averment can add nothing to the strength of the plaintiffs’ claim. The proposition is different from that where the grantee is sought to be evicted in an action brought against him for that purpose, and incurs the expense of a defense after notice to the grantor to defend. We think that the principle stated in the case of Chestnut v. Tyson, 105 Ala. 149, 16 South. 723, 53 Am. St. Rep. 101, is applicable and of controlling influence in the present case. If notice had been given the grantor in the conveyance, of the eviction of the plaintiffs by the city, before the filing of the bill in equity, the grantor -would unquestionably have had the right to ■stand upon the eviction, and to have paid the then consequent damages of the breach of his covenant in the deed, and avoid the unnecessary expense of useless litigation por the right to employ, and contract with, his [145] ■own counsel, if he thought proper to institute and prosecute the bill in equity. The question as to the special damages claimed was raised in the court below, both by motion to strike the claim from the complaint and by objection to the evidence. The case was tried by the court without the intervention of a jury, and therefore the third mode of raising the question, viz., by request for instructions to the jury, was not open. Motions to strike unrecoverable damages have been held to be addressed to the discretion of the trial court, and hence rulings thereon are not revisible on appeal.—Woodstock Iron Works v. Stockdale, 143 Ala. 550-554, 39 South. 335. But such is not the case where the question is raised on objections to the evidence. It is no longer a matter of discretion, but is one of legal right; and the ruling, subject to review on appeal.—Vandiver & Co. v. Waller, 143 Ala. 411, 39 South. 136. It follows, from what we have said above, as to the claimed special damages being nonrecoverable, that the admission of the evidence relative to such damages, against the objections of the defendant, was error, and for which error the judgment appealed from must be reversed, and the cause remanded. Reversed and remanded. Simpson, McClellan, and Mayfield, JJ., concur.