Brown v. Alabama Chemical Co.

• Decision Date: 09 February 1922
• Docket Number: 3 Div. 551.
• Parties: BROWN v. ALABAMA CHEMICAL CO.
• Court: Alabama Supreme Court

92 So. 260

207 Ala. 215

BROWN v. ALABAMA CHEMICAL CO.

3 Div. 551.

Supreme Court of Alabama

February 9, 1922

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action by the Alabama Chemical Company against Mrs. M. E. Brown upon a promissory note. Judgment for the plaintiff, and the defendant appeals. Affirmed.

W. A Gunter, of Montgomery, for appellant.

Ball &amp Beckwith, of Montgomery, for appellee.

SAYRE J.

In this action by appellee against appellant on a promissory note plaintiff averred that "the defendant agreed in said note that suit thereon might be brought in Montgomery county, Ala." Defendant pleaded in abatement, to state her plea in brief, that she was a citizen of this state and a resident of Lowndes county and that the alleged waiver of her right to be sued in the county of her residence was made without any consideration and was void as against public policy. Demurrer to this plea was sustained and that ruling is assigned for error.

There is no reason to doubt that the trial court was controlled by the ruling in Thompson v. Union Springs Guano Co., 202 Ala. 327, 80 So. 409. The opinion in that case was based upon a theory of venue statutes, deduced from the decision in Woolf v. McGaugh, 175 Ala. 299, 57 So. 754, to the effect that such statutes, in civil cases at least, confer a mere personal privilege which may be waived by the party entitled in general to assert it. It is conceded that Woolf v. McGaugh was correctly decided, for the reason that the waiver in that case was based upon the failure of defendant to interpose a timely plea to the territorial jurisdiction of the court. Here the question is, whether in advance of suit a party may bind himself by a stipulation waiving his right to a specific venue.

Appellant relies upon a line of cases which had its beginning in Nute v. Hamilton Ins. Co., 6 Gray (Mass.) 174. In that case Chief Justice Shaw, noting that there was no authority upon which to determine the case, and after adverting to some considerations supposed to savor of public policy, said:

"But as already remarked, these considerations are not of much weight. The greatest inconvenience would be in requiring courts and juries to apply different rules of law to different cases, in the conduct of suits, in matters relating merely to the remedy, according to the stipulations of parties in framing and diversifying their contracts in regard to remedies."

Cases in the same line are to be found in the note to Nashua River Paper Co. v. Hammermill Paper Co., 223 Mass. 8 111 N.E. 678, as reported in L. R. A. 1916D, 691.

It may be conceded that the inconveniences mentioned in Nute v. Hamilton Ins. Co., supra, would demand serious consideration in a case in which the effort might be made to change the venue of an action from state to state, and that, in such case, the stipulation would not be enforced by the courts; but, as to that, see L. R. A. 1916D, ubi supra, and 27 R. C. L. p. 785, § 8. Such was the case in Nashua River Paper Co. v. Hammermill Paper Co., supra, where it was held that a stipulation in a contract between a manufacturer and its sales agent, the one party being a Massachusetts corporation, the other a citizen of Pennsylvania, that no action should be brought in any court of any state or in any federal court, other than the court of common pleas of Pennsylvania, was held unenforceable, not precluding an action in Massachusetts.

In Jefferson County Bank v. Carland, 195 Ala. 279, 71 So. 126, we noted the fact that formerly in England the place in transitory actions, if the cause of action arose within the realm, was never material. In this country, under statutes requiring actions to be brought in certain counties some courts take the view that venue is jurisdictional. 40 Cyc. 110, 111. But the rule supported by the weight of authority is that, where the...