Opinion
4 Div. 743.
May 12, 1931.
Appeal from Circuit Court, Russell County; J. S. Williams, Judge.
Action on road contractor's bond by Pat Murphy against the Southern Surety Company of New York. Plaintiff takes a nonsuit and appeals from adverse rulings on pleading, overruling a demurrer to defendant's plea in abatement.
Affirmed.
J. W. Kelley, of Phenix City, for appellant.
An action on the bond of the contractor may be brought in the county where the work was done, or in any county where the contractor does business by agent. Gen. Acts 1927, p. 358, § 28(E). Section 232 of the Constitution does not prohibit the Legislature from fixing the venue of suits to be brought upon a contract entered into by a foreign corporation in the county in which the contract is performed.
Goodwyn Goodwyn, of Montgomery, for appellee.
A foreign corporation can be sued only in a county where it does business, and a plea in abatement that when suit was commenced, defendant foreign corporation was not doing business in the county where sued, is not demurrable. Section 232 of the constitution is mandatory and restrictive, and a venue statute in conflict therewith cannot stand. General Motors Acc. Corp. v. Home L. F. Co., 218 Ala. 681, 120 So. 165; Louisville N. R. Co. v. Strickland, 219 Ala. 581, 122 So. 693; Sullivan v. Sullivan T. Co., 103 Ala. 371, 15 So. 941, 25 L.R.A. 543.
The action was on a bond contract, wherein defendant was sought to be held liable as surety. Defendant filed its plea in the following words, to wit:
"Comes the defendant in the above entitled cause, appearing specially only for the purpose of filing this plea, and says:
"That it is a foreign corporation organized under the laws of the State of New York and duly authorized to do business in the State of Alabama; that at the time this suit was commenced it was not doing business in Russell County, Alabama, by agent or otherwise, nor has it done business in said Russell County by agent or otherwise since this suit was begun and that at such time it was and since then and is now doing business by agent in Montgomery County and in Houston County, Alabama, and that either the Circuit Court of Montgomery County, Alabama, or the Circuit Court of Houston County, Alabama, has jurisdiction to determine and try this cause.
"Wherefore, defendant says that the Circuit Court of Russell County, Alabama, is without jurisdiction in the premises as to it and prays the judgment of this Honorable Court whether the plaintiff should be allowed to further maintain this suit."
Demurrer to this plea was overruled, and plaintiff took nonsuit.
This question is settled by the following cases: General Motors Acceptance Corporation v. Home Loan Finance Co., 218 Ala. 681, 120 So. 165; Louisville N. R. Co. v. Strickland, 219 Ala. 581, 122 So. 693; Sullivan v. Sullivan Timber Co., 103 Ala. 371, 15 So. 941, 25 L.R.A. 543.
The trial court did not err in overruling the demurrer.
The judgment is affirmed.
Affirmed.