Harrison v. Wissler

• Decision Date: 27 September 1900
• Citation: 36 S.E. 982,98 Va. 597
• Court: Virginia Supreme Court
• Parties: HARRISON et al. v. WISSLER.

98 Va. 597

36 S.E. 982

HARRISON et al.

v.WISSLER.

Supreme Court of Appeals of Virginia.

Sept. 27, 1900.

VENUE—ACTION BY CIRCUIT JUDGE—STATUTORY PROVISIONS—CONSTRUCTION.

Under Code, § 3214. subd. 7, providing that, where a circuit court judge is interested in a case, which, but for such interest, would be proper for the jurisdiction of his court, the action may be brought in any county in an adjoining circuit, a circuit court judge can bring an action in the circuit court of any county in his circuit in which the defendants reside.

Appeal from circuit court, Clarke county.

Action by one Harrison and others against one Wissler. Prom a judgment dismissing the action, plaintiffs appeal. Reversed.

M. McCormick and Conrad Kownslar, for appellants.

R. T. Barton, for appellee.

BUCHANAN, J. This action was instituted against the defendant in error in the circuit court of Shenandoah county, where he resided, by the plaintiffs in error, one of whom was then, and still is, the judge of that court A plea to the jurisdiction of the court was filed, and the cause removed by an order in vacation to the circuit court of Clarke county, where two other pleas to the jurisdiction of that court were filed. Upon the hearing the pleas were sustained, and the action dismissed.

The question involved in this writ of error to that judgment is whether a judge of a circuit court can bring an action or suit in the circuit court of any county or corporation in his circuit in which the defendant resides, or can only bring such action or suit in some county or corporation in an adjoining circuit.

The provisions of law, so far as they affect this question, are found in sections 3214 and 3215 of the Code. The former section was amended and re-enacted by acts approved February 14 and March 3, 1900 (Acts 1899-1900, cc. 329, 736), but the amendments made do not affect the question involved in this case.

Section 3214, so far as applicable to this case, provides that: "Any action at law or suit in equity, except where it is otherwise specially provided, may be brought in any county or corporation: First, wherein any of the defendants reside; * * * seventh, if a judge of a circuit court be interested in a case, which but for such interest, would be proper for the jurisdiction of his court, the action or suit may be brought in any county or corporation in an adjoining circuit"

By section 3215 of the Code "an action may be brought in any county or corporation wherein the cause of action, or any part thereof, arose, although none of the defendants reside therein, " subject to the limitations prescribed by section 3220 of the Code.

Under the provisions of these sections the judge of a circuit court may sue the defendant in the county or corporation in which the latter resides, or in which the cause of action, or any part thereof, arose, or in any county or corporation in an adjoining circuit, unless the word "may, " in the seventh clause of section 3214, be construed as imperative, and not permissive, as if it were written "shall" or "may only, " as is contended by the counsel of the defendant in error, and as was held by the trial court.

The object of all interpretation and construction is to ascertain the legislative intent, and in order to do this the general rule is that words must receive their ordinary meaning, unless it can be seen that the legislature intended that they should havea more enlarged or a more limited signification. In the case of Thompson v. Carroll's Lessee, 22 How. 422, 434, 16 L. Ed. 391, Mr. Justice Greer, in discussing the question when the word "may" should be construed "must, " said: "It is only where it is necessary to give effect to the clear policy and intention of the legislature that such a liberty can be taken with the plain words of a statute." And in Minor v. Bank, 1 Pet. 46, 64, 7 L. Ed. 55, Mr. Justice Story, in considering the same subject, said: "Without question, such a construction is proper in all cases where the legislature meant to impose a positive and absolute duty and not merely give a discretionary power. But no general rule can be laid down upon the subject, further than that that exposition ought to be adopted in this, as in other, cases which carries into effect the true intent and object of the legislature in the enactment. The ordinary meaning of the language must be presumed to be intended unless it would manifestly defeat the object of the provision." Suth. St. Const. §§ 460-462; Sedg. St. & Const. Law, pp. 375-377.

In determining what is the proper construction of the clause under consideration, we may, I think, be aided by a reference to previous legislation on that subject.

We have not access here to the statute law of the state prior to the Code of 1819. Under the provisions of that Code an action or suit might be instituted in the court where the defendant resided, or where the cause of action arose (chapter 128, § 41), and, if either of the judges of the general court was interested in any suit which, in the case of any other person would have been proper for the jurisdiction of such judge, it was provided that "it shall be lawful to institute such suit in any court within an adjacent circuit" (chapter 69, § 53; 1 Rob. Prac. [Old] 19, 20). When the revision of our laws was made in 1849, the several statutes providing where actions or suits should be commenced were gathered together, and placed in chapter 169 of the Code of 1849.

In the fifth clause of section 1 of that chapter, which is identical with the seventh clause of section 3214 of the Code of 1887, the revisers, instead of using the words "it shall be lawful, " as in section 53 of chapter 69 of the Code of 1819, substituted...