Ray v. Hey
| Citation | 183 W.Va. 521,396 S.E.2d 702 |
| Decision Date | 12 July 1990 |
| Docket Number | No. 19613,19613 |
| Parties | Everett W. RAY, Lennie C. Ray, Ralph C. Morris and Kathryn H. Morris v. Honorable John HEY, Judge of the Circuit Court of Kanawha County; One Valley Bank Corporation, N.A.; One Valley Bank of Summersville; and F.B. Tallamy, Trustee Under Deed of Trust Made to Everett W. Ray and Lennie C. Ray. |
| Court | Supreme Court of West Virginia |
1. "By section 4, c. 133, Code 1913 (sec. 4950) [ W.Va.Code, 53-5-3 [1931]], jurisdiction to award injunctive process is vested exclusively in the circuit court of the county wherein the act or proceeding sought to be enjoined is to be done, or is doing, or is apprehended, notwithstanding some of the defendants may reside in another county, except as provided in sections 6 and 9 of the same chapter (secs. 4952, 4955) [ W.Va.Code, 53-5-4, -7 [1931]], and where a co-ordinate court has jurisdiction on grounds other than the award of such injunction." Syllabus Point 1, Wayland Oil & Gas Co. v. Rummel, 78 W.Va. 196, 88 S.E. 741 (1916).
2. Because only the circuit court of the county where the land is located has jurisdiction to consider a case directly affecting the land or its title, and venue is expressly authorized in that county by W.Va.Code, 56-1-1(a)(3) [1986], any action that directly affects land or its title must be brought in the circuit court where the land is located. To the extent that Rader v. Adamson, 37 W.Va. 582, 16 S.E. 808 (1893), indicates that venue for an action directly affecting land or its title may be based on the residence of the defendant rather than on the location of the land, it is overruled.
P. Rodney Jackson, Lonnie C. Simmons, DiTrapano & Jackson, Charleston, for Everett W. Ray, Lennie C. Ray and Ralph and Kathryn Morris.
W.R. Shaffer, Robert Stewart, Jackson and Kelly, Charleston, for F.B. Tallamy.
Gregory A. Tucker, Summersville, for One Valley Bank.
Everett W. Ray, Lennie C. Ray, Ralph C. Morris and Kathryn H. Morris seek a writ of prohibition against the Honorable John Hey, Judge of the Circuit Court of Kanawha County, because he dismissed for improper venue the suits they filed against One Valley Bank of Summersville, F.B. Tallamy, trustee, and One Valley Corporation, N.A. Both suits sought an injunction to stop the sale of certain land located in Nicholas County on which the defendant bank held a deed of trust, allegedly in default, that named Mr. Tallamy as trustee. In seeking a writ of prohibition, the Rays and Morrises raise several arguments whose merits need not be discussed, because we conclude Judge Hey's dismissal of both suits for improper venue was proper.
On 17 January 1990, the Rays and the Morrises instituted suit in the Circuit Court of Kanawha County seeking damages from and an injunction against the defendant bank and Mr. Tallamy to stop the sale of certain land located in Summersville, Nicholas County, owned by the Rays and occupied by the Morrises. The Rays and Morrises allege that the defendant bank abrogated an agreement by failing to apply funds received as the result of a partial sale of the land, to the debt evidenced by the deed of trust. A hearing on the motion for an injunction was held on 22 January 1990 before Judge Hey. At that hearing Judge Hey also considered the defendants' motion to dismiss for improper venue. By order dated 26 January 1990, Judge Hey dismissed the suit without prejudice for improper venue.
On 16 February 1990, the Rays and Morrises instituted a second suit in Kanawha County that was identical to the first suit except for the addition of "One Valley Bank Corporation, N.A." as a defendant. 1 A motion to dismiss the second suit for improper venue was again sought. Because of the system of assignment in Kanawha County, the motion to dismiss was heard by a motion judge, the Honorable Tod Kaufman, on 26 March 1990. Judge Kaufman denied the motion to dismiss as premature and indicated that additional information was needed to determine if the addition of the bank holding company as defendant made venue proper in Kanawha County. On 27 March 1990, the injunction motion was heard by the "priority" judge, Judge Hey. By order dated 28 March 1990, Judge Hey denied the motion for a preliminary injunction and dismissed the action.
The Rays and Morrises argue that venue for both actions is proper in the Circuit Court of Kanawha County, based on the presence in Kanawha County of the defendant corporations. In the first suit, the Rays and Morrises maintain that the defendant bank, a domestic corporation with its principal office in Nicholas County, is "doing business" in Kanawha County. In the second suit, the Rays and Morrises maintain that the new defendant, the bank holding corporation, has its principal office in Charleston and is liable for the acts of its subsidiary, the defendant bank. 2 Both these arguments fail because the injunction sought in Kanawha County directly affects the title to land located in Nicholas County, and therefore the action must be filed in Nicholas County. Because venue was improper in both suits, we hold that Judge Hey correctly dismissed them and therefore the rule to show cause in prohibition is discharged. 3
I
The general venue statute found in W.Va. Code, 56-1-1 [1986], provides in pertinent part:
(a) Any civil action or other proceeding, except where it is otherwise specifically provided, may hereafter be brought in the circuit of any county:
(1) Wherein any of the defendants may reside or the cause of action arose, except that an action of ejectment or unlawful detainer must be brought in the county wherein the land sought to be recovered or some part thereof, is; or
(2) If a corporation be a defendant, wherein its principal office is, or wherein its mayor, president or other chief officer resides; or if its principal office be not in this state, and its mayor, president or other chief officer [does] not reside therein, where it does business; or if it be a corporation organized under the laws of this state, which has its principal office located outside of this state, and which has no office or place of business within the state, the circuit court of the county in which the plaintiff resides or the circuit court of the county in which the seat of state government is located shall have jurisdiction of all actions at law or suits in equity against such corporation, where the cause of action arose in this state or grew out of the rights of stockholders with respect to corporate management; or
(3) If it be to recover land or subject it to a debt, wherein such land or part thereof may be.
These venue provisions must be considered with W.Va. Code, 53-5-3 [1931], which provides:
Jurisdiction of a bill for an injunction to any judgment, act or proceeding shall, unless it be otherwise specially provided, be in the circuit court of the county in which the judgment is rendered, or the act or proceeding is to be done, or is doing, or is apprehended, and the same may be granted to a judgment of a justice in like manner and with like effect as to other judgments.
W.Va. Code, 53-5-4 [1931], creates a limited exception to W.Va. Code, 53-5-3 [1931], by allowing any judge of a circuit court to award an injunction, without consideration of the location of the matter to be enjoined or the residence of the defendants. 4 W.Va. Code, 53-5-7 [1931], requires that an injunction awarded under the provisions of W.Va. Code, 53-5-4 [1931], be directed to the clerk of court where the case is to be heard, and then that court is to conduct the proceeding as if the order had originated with them. 5
The relationship among the statutory provisions providing for jurisdiction for injunctions concerning the title of real estate was explained in Syllabus Point 1, Wayland Oil & Gas Co. v. Rummel, 78 W.Va. 196, 88 S.E. 741 (1916):
By section 4, c. 133, Code 1913 (sec. 4950) [ W.Va. Code, 53-5-3 [1931]], jurisdiction to award injunctive process is vested exclusively in the circuit court of the county wherein the act or proceeding sought to be enjoined is to be done, or is doing, or is apprehended, notwithstanding some of the defendants may reside in another county, except as provided in sections 6 and 9 of the same chapter (secs. 4952, 4955) [ W.Va. Code, 53-5-4, 53-5-7 [1931]], and where a co-ordinate court has jurisdiction on grounds other than the award of such injunction.
See Downs v. Lazzelle, 102 W.Va. 663, 672, 136 S.E. 195, 198 (1926) (); Patton v. Eicher, 85 W.Va. 465, 102 S.E. 124 (1920); First National Bank of Webster Springs v. McGraw, 87 W.Va. 74, 104 S.E. 296 (1920); Webber v. Offhaus, 135 W.Va. 138, 62 S.E.2d 690 (1950).
Because only the circuit court of the county where the land is located has jurisdiction to consider a case directly affecting the land, we concluded in Wayland Oil that the denial of the right of other circuits to consider cases affecting title of land not located in their circuit was "within the spirit, if not the express terms, of clause 3, § 1, c. 123, Code (sec. 4734) [ W.Va. Code, 56-1-1(a)(3) [1986]], when read in connection with section 4, c. 133 [ W.Va. Code, 53-5-3 [1931]]." Id. 78 W.Va. at 202, 88 S.E. at 743; Baird-Gatzmer Corporation v. Henry Clay Coal Mining Co., 131 W.Va. 793, 806, 50 S.E.2d 673, 681 (1948) (). In Central Trust Co. v. Feamster, 123 W.Va. 250, 255, 14 S.E.2d 619, 622 (1941), we held:
This Court has uniformly construed this statute [ W.Va. Code, 56-1-1] to require the suits regarding the title to real estate to be brought in the county in which the real estate is situated.
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