Drennen Motor Car Co. v. Evans

• Decision Date: 22 April 1915
• Docket Number: 592
• Parties: DRENNEN MOTOR CAR CO. v. EVANS.
• Court: Alabama Supreme Court

68 So. 303

192 Ala. 150

DRENNEN MOTOR CAR CO. v. EVANS.

No. 592

Supreme Court of Alabama

April 22, 1915

Appeal from Law and Equity Court, Hale County; C.E. Waller, Judge.

Action by Ben S. Evans against the Drennen Motor Car Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Transferred from Court of Appeals under Acts 1911, c. 451, § 6.

Thomas E. Knight, of Greensboro, and J.L. Drennen, of Birmingham for appellant.

Joseph H. James and S.W.H. Williams, both of Greensboro, for appellee.

THOMAS J.

The question of jurisdiction presented by this appeal is whether a suit should be brought for a statutory penalty under section 4898 of the Code of 1907, against the defendant corporation, in Hale county, where the mortgage was recorded or in Jefferson county, appellant's place of business.

By the terms of the act the failure, for two months after written request, to enter satisfaction on the margin of the record of the mortgage forfeits to the party, making the request $200 unless there is pending a suit in which the fact of satisfaction is contested. The statute contains the following provisions:

"In construing this section, the right of action given *** shall be considered as a personal right, and shall not be lost or waived by a sale of the property covered by the mortgage *** before a demand was made for the satisfaction to be entered upon the record."

What then is the venue of a suit brought to enforce this "personal right"?

Appellant insists that since debt is the form of action appropriate in such cases, it is therefore governed by that part of section 6110 of the Code providing that "all actions on contracts, except as may be otherwise provided, 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," and by that part of section 6112 providing that "a foreign or domestic corporation may be sued in any county in which it does business by agent."

Chief Justice Collier in Blackburn v. Baker, 7 Port. 290 said:

"Whenever a statute gives a right to recover damages which are ascertained by the act itself, an action of debt lies and is proper, if no specific remedy is provided."

And in McKenzie v. Gibson, 73 Ala. 205, Judge Stone declared that "the suit must be on the statute, and is in its nature an action of debt."

It was held in Southern Car & Foundry Company v. Calhoun County, 141 Ala. 250, 37 So. 425, "that debt is a form of action appropriate for recovery of statutory penalties." The authority on which this decision was rested was Spence v. Thompson, 11 Ala. 746, where Mr. Justice Goldthwaite says:

"There is no discretion as to the sum to be recovered; *** hence it appears there is no reason, growing out of the terms, which require an action on the case instead of debt."

Neither of these authorities intimates that such actions are founded "on contracts"; the holding is that, the penalty being fixed by the statute, there is no necessity for damages to be recovered by "an action on the case instead of debt."

Every right of action for which debt has been held to be an "appropriate remedy" is not an action on the contract. The cause of action for the penalty for destroying or damaging trees is a tort, but, the penalty being fixed by statute, debt is an appropriate remedy for the recovery of the penalty under sections 6035-6038 of the Code of 1907. The general distinguishing features of the action of debt are: (1) That it lies only for the recovery of a sum certain, or readily reducible to a certainty from fixed data or agreement, or by operation of law; (2) that it lies on an obligation that is payable in money only. Wetumpka & C.R.R. Co. v. Hill & Lockett, 7 Ala. 774; 13 Cyc. 406, 407.

It is immaterial whether the obligation arose by contract or by operation of the common law or of statute law, in what manner it was incurred, and by what it is evidenced; if it possesses the essential requisite of a foundation for the action, debt will lie. 13 Cyc. 408.

The statute makes the failure to satisfy the record "a personal right" of action, and fixes the amount of recovery at $200. Debt is the proper action to recover this statutory penalty, though the cause of action is in the wrongful failure, on proper notice, to satisfy the record of the mortgage, as required by the statute. The cause of action is ex delicto and not ex contractu. The distinction between the "action" and the "cause of action" is fully pointed out by Mr. Justice Mayfield in Wynn, Administrator, v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228.

In Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755, Mr. Justice Sayre, discussing the question of waiver of venue, said:

"If the cause of action could arise in one place only, then the action was local. *** The rule of the common law concerning jurisdiction in local causes was based upon the theory that such actions, being in the nature of suits in rem, should be 'prosecuted where the thing on which they were founded was situated.' "

The Justice concludes the discussion with the words:

"Inherently the action is personal; *** its treatment as a local action, under the statutes, determines the territorial jurisdiction, the venue."

The suit was for trespass to realty.

In Karthaus v. Nashville, Chattanooga & St. Louis Railway, 140 Ala. 433, 37 So. 268, it was declared that action for trespass may be brought in the county in which the wrong was done. Hoge v. Herzberg, 141 Ala. 439, 37 So. 591: Judge v. Washburn, 1 Ala.App. 470, 56 So. 2.

In Staples v. Steed, 167 Ala. 241, 52 So. 646, Ann.Cas. 1912A, 480, the suit was for damages for killing plaintiff's horse; the plea of the defendant's nonresidence was without merit. The venue in trover is where the conversion occurred (Forbes v. Rogers, 143 Ala. 208, 38 So. 843); and in detinue in any county where the property sued for may be found in the possession of the defendant (Rand v. Gibson, 109 Ala. 266, 19 So. 533). Each of these cases involved a cause of action ex delicto, and under section 6110 of the Code of 1907 the venue was declared to be in the county of the defendant's residence, "or in the county in which the act or omission complained of may have been done, or may have occurred."

The question of venue of the action for the recovery of the statutory penalty under section 4898 of the Code does not appear to have been passed on by the court. The cause of action is the failure to do an act required by the statute to be done in the county where the "mortgage or deed of trust" is recorded. As declared in Woolf v. McGaugh, supra, the "action was local." The omission could arise in only one place. The failure to satisfy the mortgage record was in Hale county, where the mortgage was recorded, and not in Jefferson county, where was the situs of appellant corporation. The mortgage record had given publicity and notice of the debt of appellee and its security on his lands; the statute required that the same notice or publicity be given of its payment or satisfaction.

Mr. Justice Somerville declared, in Home Protection of North Alabama v. Richards & Son, 74 Ala. 466, 470, that:

"It is not clear that the framers of the Constitution had any reference to the venue of civil actions, in framing the clause of that instrument under consideration [section 240]. It is a general rule that no one has any vested right to any particular remedy or form of procedure, and that the matter of venue belongs to the procedure or remedy, and is no part of the right itself."

The question of venue is the place of procedure designated by the statute. It is declared in section 6112 of the Code of 1907 where certain suits for personal injuries must be brought against corporations, and where corporations may be sued on other causes of action than personal injuries. It is clear however, that this section was not intended to declare the venue of all actions against corporations. It is necessary, then, that we consider this section with the other sections of the Code declaring venue. What, then, is the meaning of...