Tortsvenuefreeholder privilegeresident defendantjustice of the peaceplea in abatementcounty of residenceservice of process
Facts
Read brought an action against Coker before a justice of the peace in Dallas County. Coker responded on appeal to the County Court by pleading in abatement that, when the suit began and still, he was a resident freeholder of Bibb County. The plaintiff demurred to that plea, but the County Court overruled the demurrer and entered judgment for Coker. The opinion does not indicate that any oath was made that Coker had gone from his county of residence to avoid service of process.
Issue
Does the statutory protection that no freeholder shall be sued outside the county of his permanent residence apply to proceedings before a justice of the peace, absent the statutory oath that the defendant left his home county to avoid service?
Rule
Under the 1807 act, a freeholder may not be sued outside the county of his permanent residence. The 1819 act permits suit in the county where the defendant is found only if an oath is made before the clerk or justice of the peace that he left his county of residence to avoid service; this exception applies alike to all courts and all process by which suits may be commenced, including proceedings before a justice of the peace.
🔒
See the holding & full analysis
Create a free KwikCourt account to unlock the rest of this brief — and practice the case.
The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case
One of 10 multiple-choice questions for this case. Pick an answer to see why.
Nina Barrett filed a small debt action before a justice of the peace in Mobile County against Owen Pike after locating him there on a business trip. Owen timely pleads in abatement that when the suit began, and still, he was a resident freeholder of Monroe County, and Nina never made any sworn statement that Owen had left Monroe County to avoid service.
How should the court rule on Owen's plea?
Explanation. The majority held that the freeholder privilege applies in proceedings before a justice of the peace just as it does in courts of record. Under the 1807 statute, a freeholder may not be sued outside the county of permanent residence, and the 1819 statute creates an exception only when an oath is made before the clerk or justice that the defendant left his county of residence to avoid service. Because no such oath was made here, the plea in abatement should be granted. (Derived from Read v. Coker (1853).)