Blanchard v. Twin City Market

• Decision Date: 17 September 1931
• Parties: F. T. BLANCHARD AND SUE B. BLANCHARD v. TWIN CITY MARKET, INC.
• Court: Virginia Supreme Court

Page 13

157 Va. 13

F. T. BLANCHARD AND SUE B. BLANCHARD v. TWIN CITY MARKET, INC.

Supreme Court of Virginia, Staunton.

September 17, 1931.

Present, Prentis, C.J., and Epes, Hudgins, Gregory and Browning, JJ.

1. INJUNCTIONS — Enjoining Prosecution of Action at Law — Jurisdiction — Venue — Case at Bar. — The instant case was a suit in the Corporation Court of the city of Bristol to enjoin the prosecution of a writ of unlawful detainer in the Circuit Court of Washington county. Appellants contended that the Corporation Court of the city of Bristol had no jurisdiction to entertain the bill, basing their contention upon section 6318 of the Code of 1919, which provides that the jurisdiction of a bill for an injunction to any judgment or judicial proceeding shall be in the court in which the judgment was rendered or such proceeding was pending.

Held: That although section 6318 uses the word "jurisdiction," it merely fixes the venue, and appellants waived their privilege to have the case heard and determined in the Circuit Court of Washington county by not filing the plea in abatement given them under section 6105 of the Code of 1919.

2. INJUNCTIONS — Jurisdiction and Venue — Sections 6318 and 6321 of the Code of 1919. — Sections 6318 and 6321 are directory and not mandatory, and were never intended to repeal or modify section 5890 and thereby deprive the chancery courts of any portion of the jurisdiction conferred upon them by that section. While these sections use the word "jurisdiction," they merely fix the "venue."

3. INJUNCTIONS — Jurisdiction and Venue — Sections 6318 and 6321 of the Code of 1919 — Filing Plea in Abatement. — The enjoyment of the venue privilege granted by sections 6318 and 6321 of the Code of 1919, where, as in the instant case, the declaration, or bill, shows on its face proper matter for the jurisdiction of the court, is conditioned upon the party claiming the privilege filing a plea in abatement within the time prescribed by section 6105.

4. JURISDICTION — Venue — Jurisdiction and Venue Distinguished. — Jurisdiction is the power to adjudicate a case upon the merits and dispose of it as justice may require. Venue is merely the place fixed for a trial. Both are prescribed by statute. Venue is a mere privilege of the defendant which he may waive, if he wishes, and he will be deemed to have waived it unless he raises the objection in the manner prescribed by statute. Neither consent nor waiver can confer jurisdiction, though it may admit venue.

5. EQUITY — Injunction — Jurisdiction — Equity Acts in Personam. — The circuit courts of the State have general equity jurisdiction, including the power to grant injunctions, under section 5890 of the Code, and section 6321 directs an order granting an injunction to be sent to the clerk of such court as has jurisdiction under section 6318. This is not a limitation upon the power of the court granting the injunction, but simply fixes the venue of the case to be tried. Manifestly, it seemed to the legislature that section 6318 furnished the most convenient place to hear the controversy. But equity acts in personam, and may compel a party within its jurisdiction to perform an act outside of its jurisdiction. The statute is a venue statute and not a jurisdictional one.

6. LANDLORD AND TENANT — Lease of Market — One of Lessors an Officer and Incorporator of Lessee Corporation — Estoppel of Lessors. — The instant case was a suit to enjoin the prosecution of a writ of unlawful detainer. Appellants were the lessors of a market and appellee was the lessee. One of the appellants was an incorporator and officer of appellee corporation and had agreed to supply one-third of the capital stock of appellee.

Held: That this appellant was estopped to deny every fact which he knew as incorporator and director of the lessee corporation, so that he could not complain of its capitalization with which he was familiar and one-third of which he agreed to supply.

7. LANDLORD AND TENANT — Lease of Market — Rescission by Lessors for Breach by Lessee — Case at Bar. — The instant case was a suit to enjoin the prosecution of a writ of unlawful detainer by the lessee of a market against the lessors. The decree of the trial court perpetuated the injunction against the unlawful detainer proceeding, and held that appellants, under the allegations of their cross bill, were not entitled to a rescission of the lease agreement on account of a breach of contract by appellee, the lessee. Of course, this adjudication applied only to the facts then shown to exist. It does not prevent appellants from reopening the question, if they should hereafter be in a position to allege and prove any repeated or continuing breaches of the lease which entitle them to re-enter and repossess their property as of their former estate.

8. LANDLORD AND TENANT — Lease of Market — Declaratory Decree Construing Lease — Stipulation for Employment of a Full Time Manager — Case at Bar. — In the instant case appellants leased to appellee a market in the city of Bristol. Complainant's bill prayed for a declaratory decree as to the stipulation in the lease agreement providing that appellee should employ a full time resident manager. The court was of the opinion that under this provision the manager might reside either in Bristol, Virginia, or Bristol, Tennessee, and that a corporation might be employed as such manager. However, if a corporation is employed, it must act through some competent person as though an individual were employed, that is to say, some one "who shall devote his entire time to the operation, control and supervision of the entire property."

9. LANDLORD AND TENANT — Lease of Market — Provision that Lessee should Employ a Competent Full Time Resident Manager — Waiver by Lessors of this Provision — Right to Exact Compliance with Provision in Future — Case at Bar. — In the instant case appellants leased to appellee a market property, the lease containing the provision that lessee should employ a full time resident manager for the market.

Held: That although lessors had by their assent and acquiescence waived a full compliance with this stipulation on the part of lessee for the time being, they were not precluded from exacting full performance thereof in the future.

Appeal from a decree of the Corporation Court of the city of Bristol. Decree for complainant. Defendants appeal.

The opinion states the case.

S. Bruce Jones, for the appellants.

Hall, Buford & Leftwich, for the appellee.

PRENTIS, C.J., delivered the opinion of the court.

The appellee, the Twin City Market, Inc., filed its bill against the appellants in the Corporation Court of the city of Bristol. The objects of the suit were to enjoin the prosecution of a writ of unlawful detainer in the Circuit Court of Washington county; to construe the lease of certain real estate in the city of Bristol made by F. T. Blanchard and Sue B. Blanchard to it; to secure a declaratory decree fixing the rights of the parties thereunder; and for the avoidance of a forfeiture of that lease claimed by the lessors, the appellants.

The first and second assignments of error present the same question.

The appellants, who were defendants in the court below, instead of filing a plea in abatement, appeared and moved to dissolve the interlocutory injunction which had been awarded to restrain their prosecution of the writ of unlawful detainer, and after that motion had been overruled filed a demurrer to the bill, which was also overruled.

1-3 The contention of the appellants is that the Corporation Court of the city of Bristol had no jurisdiction to entertain the bill, and that appellee, complainant below, had a complete and adequate remedy in the pending writ of unlawful detainer which had been instituted in the Circuit Court of Washington county, a court having concurrent jurisdiction in Bristol with the Corporation Court of the city of Bristol. This contention is based upon Code, section 6318, which reads:

"Jurisdiction of a bill for an injunction to any judgment or judicial proceeding shall be in the court in which the judgment was rendered or such proceeding is pending; except that jurisdiction of an injunction to a judgment of a justice, or to any proceeding before a justice, shall be in the circuit court of the county, or the circuit, corporation, or other court of the city, having chancery jurisdiction of the county or city in which the judgment was rendered or such proceeding is pending; and jurisdiction of an injunction to any other act or proceeding shall be in the circuit court of the county or the circuit, corporation or other court of the city, having chancery jurisdiction, in which the act or proceeding is to be done, or is doing, or apprehended."

The appellants were claiming that the lease which was involved had been terminated by them after due notice, because of alleged breaches of conditions subsequent contained in the lease, relying chiefly upon the provision of the lease which reads: "The property hereby leased shall at all times be under the management of a competent resident manager, appointed by the board of directors and properly bonded, who shall devote his entire time to the operation, control and supervision of the entire property."

The property involved was a market house and premises.

The question of jurisdiction thus raised has been so recently and fully discussed in the case of Southern Sand & Gravel Co., Inc., Massaponax Sand & Gravel Corporation, 145 Va. 317, 133 S.E. 812, that we think it only necessary to refer to the opinion in that case, which contains many citations and seems to refer to all of the pertinent authorities. In that case, the bill was filed in the Circuit Court of the city of Richmond, while the acts enjoined were in Spotsylvania county. The same section, 6318, was relied on, and the defendants appeared specially and moved the court to dismiss the temporary injunction which had been granted, on...