Conner v. Willet

• Decision Date: 29 November 1956
• Docket Number: 4 Div. 894
• Citation: Conner v. Willet, 265 Ala. 319, 91 So.2d 225 (Ala. 1956)
• Parties: Lela Ard CONNER v. Edmund R. WILLET and Virginia Willet.
• Court: Alabama Supreme Court

Page 225

91 So.2d 225

265 Ala. 319

Lela Ard CONNER v. Edmund R. WILLET and Virginia Willet.

4 Div. 894.

Supreme Court of Alabama.

Nov. 29, 1956.

Reid & Enzor, Andalusia, for appellant.

Brooks & Garrett, Brewton, for appellees.

MERRILL, Justice.

Appellant filed suit against appellees, who were nonresidents of the State of Alabama, in the Circuit Court of Covington County on March 27, 1956, claiming damages for personal injuries sustained in an automobile accident in Conecuh County. Personal service was perfected on each of the appellees by the Sheriff of Escambia County on March 29, 1956. Within 30 days, the appellees filed a joint plea in abatement averring in substance that the Circuit Court of Covington County was without jurisdiction of the cause of action in that the defendants, appellees, were nonresidents of the State of Alabama, and the injury complained of occurred in Conecuh County.

Appellant filed a demurrer to the plea in abatement which was overruled. Thereupon appellant took a non-suit because of the adverse ruling on the demurrer. The judgment of non-suit is legally sufficient to support an appeal and appellant has appealed from the judgment of the circuit court.

The sole question presented is whether or not a suit for personal injuries may be maintained against a nonresident defendant in a county other than the county in which the cause of action arose, the defendant having been personally served with process while within this state; or, to put it another way, did the Supreme Court of the United States in the case of Power Manufacturing Co. v. Saunders, 274 U.S. 490, 47 S.Ct. 678, 71 L.Ed. 1165, decided in 1927, overrule the case of Jefferson County Savings Bank v. Carland, 195 Ala. 279, 71 So. 126, 127, decided in 1916? The trial court adjudged that it did, saying in his written opinion, after discussing both cases, 'This case (the Power case), as we view it, overrules the constitutional aspect of the Alabama case wherein Justice Sayre said that due process and equal protection are satisfied by any practice having sanction of common law usage'.

We first consider our case, Jefferson County Savings Bank v. Carland, supra. There the Bank sued defendant Carland and others in Jefferson County. The defendants were nonresidents, their place of residence being in the State of Ohio. Process was served on them in Cullman County. They pleaded in abatement that they were subject to suit in this state only in the county in which they were found. We quote from the opinion of the court written by Sayre, J.:

'The action is personal and transitory, and the defendants are nonresidents, so that our venue statute (Code § 6110), providing that personal actions must be brought in the county in which the defendant, or one of the defendants, resides, if such defendant has within the state a permanent residence, has no application, and the question is to be determined on common-law principles.

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'The privilege, which a resident of this state has, of being sued in the county of his permanent residence, is personal to him. Weaver v. Crenshaw, 6 Ala. 873. It is conferred by our statute of venue, without which the place of trial would be optional with the plaintiff. But the statute makes no provision as to venue in transitory actions against nonresidents. By coming here, however, transiently, defendants have submitted themselves to the jurisdiction which every state exercises over all persons within its limits in respect to matters purely personal, which, in contemplation of law, have no locality; and we apprehend there is no good reason why they should have the benefit of a personal privilege of mere convenience which the statute has conferred only upon persons having a permanent residence in this state. Every substantial right they have may, and will beyond peradventure, be as fairly adjudicated, and for aught we can see, as conveniently, in Jefferson county as anywhere else in the state. Due process and equal protection, which, respectively, are satisfied by any practice having the sanction of common-law usage, and have reference to substance and not form, do not require that the privilege of localizing actions should be conferred alike on resident and nonresident defendants, though in some states it has been done. New York, L. E. & W. R. R. Co. v. Estill, 147 U.S. 591, 608, 13 S.Ct. 444, 37 L.Ed. 292. The plea was insufficient.'

This was the rule at common-law and the rule has been followed by the courts of several other states. See Zouck v. Zouck, 204 Md. 285, 104 A.2d 573, 105 A.2d 214; Alcarese v. Stinger, 197 Md. 236, 78 A.2d 651; State ex rel. Appelby v. District Court, 46 N.M. 376, 129 P.2d 338; Courtney v. Meyer, 202 S.C. 437, 25 S.E.2d 481.

There was no question of the constitutionality of such procedure as to nonresidents until the decision in Power Manufacturing Co. v. Saunders, supra.

The facts in the Power case were that Saunders and the company were nonresidents of Arkansas. The company had qualified to do business in Arkansas and maintained a warehouse at Stuttgart, which city was designated as its principal place of business, its agent for process resided there, and the company did no business anywhere else in Arkansas. Saunders was injured while working in the warehouse at Stuttgart, and he sued the company in a county other than the one in which Stuttgart is located.

The Arkansas statutes required actions of this character, if against a domestic corporation, to be brought in a county where it has a place of business or in which its chief officer resides, but if against a foreign corporation, to be brought in any county in the state. The company contended that this statute was unconstitutional because it was in conflict with the equal protection clause of the 14th Amendment to the Constitution of the United States. The Supreme Court of the United States, Justices Holmes and Brandeis dissenting, upheld this contention and said in part [274 U.S. 490, 47 S.Ct. 680]:

'* * * Of course the restricted venue as to domestic corporations and individuals is prompted by considerations of convenience and economy; but these considerations have equal application to foreign corporations. So far as the plaintiffs in such actions are affected, it is apparent that there is no more reason for a state-wide venue when the action is against a foreign corporation than when it is against a domestic corporation or a natural person. So we conclude that the special classification and discriminatory treatment of foreign corporations are without reasonable basis and essentially arbitrary.

'The state court put its decision on the ground that venue is a question of procedure which the state may determine; and counsel for plaintiff advance the further ground that the defendant impliedly assented to the venue provisions by seeking and obtaining permission to do business within the state, the provisions being then on the statute book. But neither ground can be sustained.

'It of course rests with the state to prescribe the venue of actions brought in her courts. But the exercise of this power, as of all others, must be in keeping...