Ex parte Till
| Decision Date | 13 March 1992 |
| Citation | 595 So.2d 871 |
| Parties | Ex parte Henry H. TILL, et al. (In re Henry H. TILL, et al. v. STATE of Alabama). 1910446. |
| Court | Alabama Supreme Court |
David P. Shepherd, Fairhope, for appellants.
James H. Evans, Atty. Gen., and Ronald C. Forehand and Carol Jean Smith, Asst. Attys. Gen., for appellee.
The issue presented by this petition for a writ of mandamus is whether a defendant, by answering a complaint and failing to object therein to the venue of an action, thereby waives the objection and is subsequently barred from raising the question when the plaintiff amends the complaint in a manner that would not affect venue.
The subject action involves a dispute between the plaintiffs and the State of Alabama over certain land located in Baldwin County that was conveyed to the State of Alabama in 1955, to be used by the State as a public park or for a historical monument. The deed conveying the land contained a reversionary provision stating that if the State "did not commence development of the said land for a public park or historical monument within 10 years from the date of this deed, or in the event the grantee ceases to use the property as a public park or historical monument, the title to the said land shall revert to and vest in the grantors, or their heirs."
The heirs of the grantors sued the State and sought to have the court declare that a reversion had occurred because the contemplated development of the land had not commenced as intended by the grantors.
The State answered the complaint, without questioning whether venue was appropriate in Baldwin County. Subsequently, the plaintiffs amended their complaint to add an additional tract of land located in Baldwin County to the description of the land set out in the original complaint. Several days later, the State filed a motion styled as a motion for change of venue or a Rule 12(b)(3), Ala.R.Civ.P., motion. The trial court granted the State's motion and transferred the action to Montgomery County. The plaintiffs seek a writ of mandamus ordering Judge Thomas B. Norton, Jr., to set aside his order transferring the action to Montgomery County.
The plaintiffs argue that the trial court was incorrect. They contend that the State, by answering the original complaint without raising the defense of improper venue, thereby waived its objection. We agree with them.
Rule 12(b) provides, in part:
Rule 12(b), therefore, requires that a claim of "improper venue" be made in the responsive pleading or in a motion filed...
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