Ex parte Kemp, 6 Div. 929

• Decision Date: 09 April 1936
• Docket Number: 6 Div. 929
• Citation: 232 Ala. 434,168 So. 147
• Parties: Ex parte KEMP et al.
• Court: Alabama Supreme Court

168 So. 147

232 Ala. 434

Ex parte KEMP et al.

6 Div. 929

Supreme Court of Alabama

April 9, 1936

Rehearing Denied May 28, 1936

Original petition of W.T. Kemp and the Royal Indemnity Company of New York for mandamus to J.F. Thompson, as Judge of the Circuit Court, Jefferson County.

Writ denied.

J Reese Murray and J.P. Mudd, both of Birmingham, for petitioners.

Harsh Harsh & Hare, of Birmingham, for respondent.

FOSTER Justice.

This suit was begun in the Birmingham Division of Jefferson county on a cause of action which accrued in the Bessemer division against W.T. Kemp, as deputy sheriff there acting, and the surety on his bond, to wit, Royal Indemnity Company, a foreign corporation.

Kemp is alleged to be a resident of the Bessemer division, and Royal Indemnity Company to be doing business by agent in Jefferson county, both in Bessemer and Birmingham divisions.

The defendants moved to transfer the cause to Bessemer under section 6493, Code.

The only question argued is whether the suit can be maintained in Birmingham, or whether the Bessemer court has exclusive jurisdiction under the circumstances. Section 2 of the Local Acts of 1919, pp. 62, 63, provides that the circuit court at Bessemer "shall have, exercise and possess all of the jurisdiction and the powers which are now or which may hereafter be conferred by law on the several Circuit Courts of this State, which said jurisdiction and powers shall be exclusive in, limited to, and extend over that portion of the territory [described in detail], and from and over the above mentioned and described territory all jurisdiction and powers heretofore or now exercised or existing therein by the Circuit Court of the Tenth Judicial Circuit, as now held at Birmingham, is hereby expressly excluded."

It is not as restrictive as is declared in section 8711, Code applicable to justice courts in the several precincts of a county. It more nearly resembles the rule applicable to different counties in the state.

The terms of the act relate to jurisdiction and powers and do not mention venue, but we assume that the venue statutes relating to separate counties have application to the divisions thus made of Jefferson county.

It was held in Ex parte Fairfield-American National Bank, 223 Ala 252, 135 So. 447, that a corporation, incorporated in Jefferson county, having its office and principal place of business at Ensley (which we judicially know is a part of Birmingham), was suable either in the Birmingham or Bessemer division, in equity, for a fraudulent sale of property situated in the Bessemer division, because the domicile of the corporation was averred to be at Ensley in Birmingham; and a suit in equity may be filed in any county where a material defendant resides. Section 6524, Code. Section 232 of the Constitution means that a foreign corporation may be sued in a county where it does business by agent, regardless of statutory requirements to a different effect. General Motors Acceptance Corporation v. Home Loan & Finance Co., 218 Ala. 681, 120 So. 165; Tennessee...