Ex parte Smith, 87-891

Decision Date29 July 1988
Docket NumberNo. 87-891,87-891
Citation533 So.2d 533
PartiesEx parte Matthew B. SMITH. (In re Matthew B. SMITH v. KJ & R, INC.)
CourtAlabama Supreme Court

Page 533

533 So.2d 533
Ex parte Matthew B. SMITH.
(In re Matthew B. SMITH
v.
KJ & R, INC.)
No. 87-891.
Supreme Court of Alabama.
July 29, 1988.
Rehearing Denied Sept. 16, 1988.

J. Thomas Ryan, Jr., of Hamilton & Ryan, Huntsville, for petitioner.

William T. Musgrove, Jr., of Walker & Musgrove, Florence, for respondent.

SHORES, Justice.

Matthew B. Smith petitions the Court for a writ of mandamus to the Honorable Daniel B. Banks, Jr., Judge of the Madison Circuit Court, directing him to vacate his order of February 5, 1988, transferring a case from the Madison Circuit Court to the Lauderdale Circuit Court. The relevant facts are as follows:

On November 24, 1987, Smith filed a three-count complaint against KJ & R, Inc., in Madison Circuit Court. The complaint

Page 534

alleged breach of contract and fraud, and contained a count for work and labor done.

On December 15, 1987, the defendant filed a motion to dismiss or, in the alternative, to transfer the case to Lauderdale Circuit Court. The motion was heard on February 5, 1988, after which the trial court granted the motion and transferred the case to the Lauderdale Circuit Court.

The defendant is a corporation doing business in Lauderdale County. The corporation does not do business in Madison County, and it was not doing business by agent in Madison County at the time the cause of action arose. The contract that is the subject of this suit concerned the employment of the plaintiff/petitioner as a general manager of a restaurant in Lauderdale County.

The petitioner alleges that, pursuant to the employment contract, he undertook various work and labor on the defendant's behalf, and that a substantial portion of that work was performed in Madison County. He contends that Code (1975), § 6-3-3, provides him with an election as to the county in which he can pursue his claim for work and labor done. That section reads as follows:

"In all actions for work and labor done ... the action may be commenced in the county in which the work was done...."

However, the defendant correctly points out that the legislature passed an act in 1987, now codified at Code (1975), § 6-3-21.1, which, for the first time in Alabama, provides for the change of venue for the convenience of parties and witnesses. That provision is as follows:

"(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of...

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17 cases
  • Ex parte Fowler
    • United States
    • Supreme Court of Alabama
    • March 23, 1990
    ...of that discretion. It may not, however, issue to control or review the exercise of discretion except in a case of abuse. Ex parte Smith, 533 So.2d 533 (Ala.1988)." Ex parte Edgar, 543 So.2d 682, 684 Our review of Judge Lewis's denial of Fowler's motion for denial of adoption and denial of ......
  • Ex parte City of Birmingham
    • United States
    • Supreme Court of Alabama
    • July 16, 1993
    ...the exercise of discretion by an inferior court, the writ of mandamus may issue to compel the exercise of that discretion. Ex parte Smith, 533 So.2d 533 (Ala.1988); Ex parte Edgar, supra. Although it is unnecessary to consider this issue, because we issue the writ on other grounds, we would......
  • State v. McKinney
    • United States
    • Alabama Court of Criminal Appeals
    • December 22, 1998
    ...to control or revise the exercise of that discretion except in a case of abuse. Ex parte Edgar, 543 So.2d at 684 (citing Ex parte Smith, 533 So.2d 533 (Ala.1988)). `Mandamus is an extraordinary remedy, but is appropriate in exceptional circumstances which amount to judicial usurpation of po......
  • Ex parte Jackson
    • United States
    • Supreme Court of Alabama
    • January 8, 1993
    ...to control or revise the exercise of that discretion except in a case of abuse. Ex parte Edgar, 543 So.2d at 684 (citing Ex parte Smith, 533 So.2d 533 (Ala.1988)). "Mandamus is an extraordinary remedy, but is appropriate in exceptional circumstances which amount to judicial usurpation of po......
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