Harris v. Elliott, 3 Div. 151
| Decision Date | 21 January 1965 |
| Docket Number | 3 Div. 151 |
| Citation | 277 Ala. 421,171 So.2d 237 |
| Parties | Ex parte Lennie Retherford HARRIS, v. Archie H. ELLIOTT, Judge. |
| Court | Alabama Supreme Court |
Rives, Peterson, Pettus & Conway, Birmingham, and W. Guy Hardwick, Dothan, for petitioner.
Martin, Balch, Bingham & Hawthorne and Robt. M. Collins, Birmingham, and Brooks, Garrett & Thompson and Broox G. Garrett, Brewton, for respondent.
Petitioner seeks a peremptory writ of mandamus to the Judge of the Circuit Court of Escambia County, commanding him to enter an order re-transferring the case of (petitioner) Harris v. Alabama Power Company from the Circuit Court of Escambia County to the Circuit Court of Jefferson County.
Petitioner filed suit against Alabama Power Company in Jefferson County seeking damages for the wrongful death of her husband which occurred in Atmore, Escambia County, on November 2, 1959. Defendant filed pleas in abatement alleging that defendant was and is a domestic corporation; that at the time the cause of action arose and at the time of the filing of said pleas such defendant was doing business by agent in Escambia County, Alabama; that the cause of action arose out of alleged misconduct in Escambia County, Alabama; that the plaintiff's residence is Bonifay, Florida, and that at the time of his death the decedent was a resident of Bonifay, Florida. The defendant prayed that the action be abated, alleging that venue was improperly laid in Jefferson County, Alabama, and that any suit must be instituted in Escambia County, Alabama.
The Circuit Court of Jefferson County sustained the pleas in abatement and transferred the case to the Circuit Court of Escambia County, pursuant to Act No. 76 of the Special Session of the Legislature of 1961, Acts 1961, p. 1953, (Tit. 7, § 64 (1), Recompiled Code 1958, Pocket Part) which provides:
Plaintiff then filed a motion to transfer the cause back to Jefferson County and the motion was overruled. The present petition for writ of mandamus was then filed in this court to require the transfer of the cause back to Jefferson County.
Both parties agree that two questions are presented on this appeal; first, is mandamus the proper remedy; and second, if mandamus is proper, whether or not an action for wrongful death under our Homicide Act, Tit. 7, § 123, Code 1940, is an action for 'personal injuries' within the purview of Tit. 7, § 60, Code 1940, which reads:
'A foreign corporation may be sued in any county in which it does business by agent, and a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose; but all actions against a domestic corporation for personal injuries must be brought in the county where the injury occurred or in the county where the plaintiff resides, if such corporation does business by agent in the county of plaintiff's residence.'
Petitioner concedes in brief 'that normally mandamus is not regarded as an appropriate remedy to review a ruling of the trial court on a plea in abatement, appeal being regarded as being sufficient to afford relief.' But petitioner urges that this case is an exception to the general rule. The exceptions are listed in Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432, where we held that a review...
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Ex parte Gauntt
...v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).7 Section 232 does not apply to domestic corporations. Harris v. Elliott, 277 Ala. 421, 171 So.2d 237 (1965).8 United Insurance Company of America is a subsidiary of the defendant Unitrin, Inc. The other corporate defendants, Uni......
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Geohagan v. General Motors Corp.
...was overruled as to its holding on the venue question, the language quoted above has been reaffirmed by this Court in Harris v. Elliott, 277 Ala. 421, 171 So.2d 237 (1965).6 The Official Comments numbered 2 and 3 following § 2--318 in the 1966 Recompilation of Title 7A are not appropriate a......
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State v. Kandola (Ex parte Kandola)
...is not an appropriate means of reviewing the trial judge's order in this case.”621 So.2d at 1258. See also Harris v. Elliott, 277 Ala. 421, 423, 171 So.2d 237, 238 (1965) (“We think it is better to follow [established caselaw] and the authorities cited therein, rather than add another excep......
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Cartwright v. Atlas Chemical Industries, Inc.
...the benefit of all persons who may suffer personal injuries" construed to cover an injury which results in death.); Harris v. Elliott, 277 Ala. 421, 171 So.2d 237 (1965), citing Alabama Great Southern R. Co. v. Ambrose, 163 Ala. 220, 50 So. 1030 (1909) (An action for wrongful death is an ac......