Cooper v. Lake Wood Co.

SAYRE, J. Appellee, plaintiff in the court below, answered appellant’s plea to the jurisdiction, in which appellant alleged that he resided in the state of Mississippi, and had not been served with process in this state, by exhibiting to the court the return indorsed upon the summons by the sheriff of Choctaw county in this state, and purporting to show its due execution, and by testimony tending to show that prior to the filing of the plea to the jurisdiction appellant had filed a different plea in the cause. (1, 2) If the sheriff of Choctaw county executed the summons on appellant in the State of Mississippi, as appellant contends, the service was a nullity of course; but the court had jurisdiction of the subject-matter of the suit, appellant was suable in this state upon coming into it (Jefferson County Savings Bank v. Carland, 195 Ala. 279, 71 South. 126), and if he went into court and pleaded a plea that did not go to the irregularity or invalidity of the process (Oliver v. Kinney, 173 Ala. 593, 56 South. 203), he thereby waived the question of territorial jurisdiction or venue, and must abide the result of the litigation to which he made himself a voluntary party (Woolf v. McGaugh 175 Ala. 299, 57 South. 754). (3) The statement of the bill of exceptions is simply that appellant did “file a plea.” The nature of the plea is not disclosed. It is not shown by the record, nor does the bill purport to set out all the evidence. It has been repeatedly ruled that in such case this court will presume any state of the evidence which will sustain the ruling of the trial court.—Baker v. Patterson, [635] 171 Ala. 88, 55 South. 135. We are authorized, therefore, to assume that the plea itself or evidence of its contents in the court below fully warranted the conclusion that appellant had filed a plea to the merits in advance of his plea to the jurisdiction. (4) Appellant’s waiver of the matter set up in his plea to the jurisdiction — it was, as we have indicated, a matter that might be waived (Woolf v. McGaugh, supra)—should properly have been brought forward by replication to the plea; but it appears that the question of waiver was litigated in the court below, and the judgment must be affirmed on the ground that the issue as to waiver was found against the appellant. Affirmed. Anderson, C. J., and McClellan and Gardner, JJ., concur.