Associated Grocers of Ala. v. Graves Co.

• Citation: 130 So.2d 17,272 Ala. 158
• Decision Date: 11 May 1961
• Docket Number: 2 Div. 416
• Parties: ASSOCIATED GROCERS OF ALABAMA v. GRAVES CO. et al.
• Court: Supreme Court of Alabama

Page 17

130 So.2d 17

272 Ala. 158

ASSOCIATED GROCERS OF ALABAMA v. GRAVES CO. et al.

2 Div. 416.

Supreme Court of Alabama.

May 11, 1961.

M. R. Nachman, Jr., Steiner, Crum & Baker, Montgomery, and Neil Metcalf, Geneva, for appellant.

Edw. E. Partridge, Demopolis, for appellees.

STAKELY, Justice.

This is an appeal from a decree of the circuit court of Marengo County, in Equity, overruling appellant's demurrer to the bill of complaint.

This is a suit brought by certain alleged wholesalers of cigarettes under the Unfair Cigarette Sales Act. Title 57, §§ 83(1)-83(14), Code of 1940 (1955 Cumulative Pocket Part). Section 83(2) of the cited statute provides in material part as follows:

'It is * * * declared that the advertising, offering for sale, or sale of cigarettes below cost, in the retail and wholesale trades with the intent of injuring competitors, destroying or substantially lessening competition is an unfair business practice and the policy of the state is to promote the public welfare through the prohibition of such sales, the purpose of this chapter being to carry out that policy in the public interest.'

Section 83(3) makes the sale of cigarettes at less than cost and in violation of the statute a misdemeanor. Section 83(12) allows 'any person injured' by a violation a suit 'in any court of equitable jurisdiction' to prevent, restrain, or enjoin such violation, with provision for damages.

The complaint alleges in substance that the respondent, with an intent to injure competitors, had sold and delivered cigarettes at wholesale since its incorporation and up to the filing of the bill, particulary in Demopolis in the County of Marengo at less than the cost thereof within the meaning of the statute and had thereby violated the provisions of the statute. Complainants sought an injunction and restraining order.

Respondent demurred to the bill on the ground, among other grounds, of improper venue. The demurrer was overruled and the trial court ordered a temporary injunction as prayed for in the bill of complaint.

The question for decision is whether Marengo County is a proper venue for this suit.

The bill of complaint alleges that respondent (appellant) is a domestic corporation with its 'principal place of business at Birmingham Food Terminal, Finley Yards, Birmingham, Jefferson County * * *.' Title 7, § 294, Code of 1940, provides in its first clause that a bill in equity 'must be filed in the county in which the defendant, or a material defendant, resides * * *.' According to the contention of appellant the portion of Section 294, which has been set forth, requires that the instant suit be filed in Jefferson County.

Appellee points, however, to the language of § 83(12)(a) of the Cigarette Act, by which it is provided that 'any person injured' may maintain an action for injunctive relief and damages 'in any court of equitable jurisdiction.' Appellee seems to contend in substance that the effect of the quoted language is to eliminate the usual requirements of venue insofar as suits under the Cigarette Act are concerned, or to create a special venue in 'any court of equitable jurisdiction' for such suits. We think, however, that the purpose and effect of the quoted language of the Cigarette Act Relates only to questions of jurisdiction and do not affect the separate and distinct question of venue. Generally jurisdiction and venue are separate and distinct. Pepperell Mfg. Co. v. Alabama National Bank, 261 Ala. 665, 75 So.2d 665. In other words, the legislature has by this Cigarette Act Created a new cause of action and provided remedies for injury. Where the remedy primarily sought is the injunctive remedy, the legislature has properly conferred the authority to entertain and adjudicate the new cause of action upon courts of equity. By way of contrast, subsection (b) of § 83(12) provides that 'in the event no injunctive relief is sought or required' a person injured may maintain an action for 'damages alone in any court of competent jurisdiction.' In the situation here described the remedy is of a purely legal, rather than an equitable nature. Accordingly, jurisdiction has not been limited to courts of 'equitable jurisdiction.'

In further support of its position and of the trial court's ruling, the appellee seeks to invoke the aid of Title 7, § 60, Code of 1940, which provides in its material part that 'a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose * * *.' Under this statute, according to the appellee, the venue was properly laid in Marengo County. We also call attention to § 54, Title 7, Code of 1940, which in pertinent part reads as follows, 'all other personal actions, if the defendant or one of the defendants has within the state a permanent residence, may be brought in the county of such residence, or in the county in which the act or omission complained of may have been done or may have occurred. * * *.'

Consideration of some Alabama decisions dealing with venue statutes which are predecessors of the present venue statutes may be helpful. In Ashurst v. Gibson, 57 Ala. 584, there was a bill filed to foreclose a mortgage of real and personal property against defendants residing in another county and district than that in which the bill was filed. This court said:

'* * * The statute, prior to the act of March 17, 1873, required that bills against resident defendants should be filed in the district of the residence of a material defendant, unless the object was to enjoin proceedings or judgments in other courts, and then it must have been filed in the district in which such proceedings were pending or judgment rendered. Revised Code, § 3326. The act of 1873, amendatory of this provision of the Code, authorized the filing of the bill, if real estate is the subject-matter of suit, in the county where the same or a material portion thereof, is situated. Pamp.Acts, 1872-3, p. 119; Code of 1876, § 3760. The statute as amended, simply confers on a complainant the right of filing the bill in the county, in which the real estate or a material portion thereof, is situated. The jurisdiction of the district of the residence of a material defendant remains. The locality of the real estate, and of residence, alike confer jurisdiction, and the complainant may, at his pleasure, elect the one or the other jurisdiction. The right of election is limited to suits, the subject-matter of which is real estate; and does not embrace other suits, having a different subject-matter. As to the personal property embraced in the mortgage, the court in which the bill is filed, was without jurisdiction, unless it attaches as an incident to the jurisdiction, by reason of the locality of a part of the land. The general policy of legislation is to subject the citizens to suits only in the county of his...