We do not think that the authority of Lewis v. Elrod, 38 Ala. 17, and Ashurst v. *Page 267 Gibson, 57 Ala. 584, which we cited, should be minimized because they are old. Our understanding is that a principle is not wanting in authority because old and long settled, when no change has been made. Counsel have gone to the trouble to find the original record in those cases, and seem to find comfort in what they show. In the first case a plea in abatement was first filed; later demurrers were filed, before action on the plea in abatement. Such is ordinarily regarded as a waiver of the plea. But it is well understood that if the bill shows on its face that it was filed in the wrong district, it is subject to demurrer on that ground and a plea is not necessary. Counsel are particular to say that the first ground of demurrer was there directed to this defect, and that others were directed to the merits. We do not think importance is attached to the order in which grounds are assigned. The report of the case asserts that the demurrer was for want of equity, and that it was filed in the wrong county, and on several other grounds. It also shows that the decree was on the demurrer. Counsel find that the decree did not expressly refer to the demurrer, but merely dismissed the bill. The whole of the opinion is addressed to the question of venue thus presented, and affirmed the decree of the court, and stated that "the demurrer was rightfully sustained" on that ground, without passing upon other assignments of the demurrer.
That situation cannot minimize the consequences of the opinion that the right thus to question the venue was not lost by assigning other grounds of demurrer, extending to the merits. If the plea in abatement had first been acted on before filing the demurrer, the question would be covered by the case of Tigrett v. Taylor, 180 Ala. 296, 60 So. 858.
In the case of Ashurst v. Gibson, 57 Ala. 584, counsel also find comfort in the fact there was a motion to dismiss and demurrer. The motion was not first acted on. He shows that the motion was on the ground that the court had no jurisdiction. The demurrer was for want of equity, want of jurisdiction over the subject-matter, and want of necessary parties. The opinion states that the "demurrer and the plea to the jurisdiction present the same question — whether jurisdiction of the person of the defendants resided in the court in which the bill was filed, or," etc. We assume that "the plea to the jurisdiction" referred to the motion to dismiss mentioned by counsel. In any event, the demurrer in which any ground fairly presented the question of venue, though others went to the merits, though filed before the motion to dismiss or plea was acted on, did not waive the motion to dismiss on that ground nor the plea in abatement to that effect, nor a consideration of that ground of demurrer.
Such effect of the demurrer would be different if the question were one of due service. That was the question in Thompson v. Wilson, supra, in this respect, and in the many cases cited by counsel for appellee. A demurrer is necessarily an appearance, and a waiver of notice; but it is only one act of pleading and may point out defects of any and every sort apparent upon the face of the bill not otherwise waived. In the very nature of things, if it points out one good ground, it should be sustained, and no ground assigned should waive another which is well taken, though of course it may be waived by other pleading. Tigrett v. Taylor, supra.
We think that our former opinion is correct, and the application for rehearing is overruled.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.