Smitherman v. Superior Court In and For Pima County

• Decision Date: 15 November 1967
• Docket Number: No. 8976--PR,8976--PR
• Citation: 433 P.2d 634,102 Ariz. 504
• Parties: William C. SMITHERMAN, Petitioner, v. SUPERIOR COURT IN AND FOR the COUNTY OF PIMA, Respondent, and Roy J. Meyer, Real Party in Interest.
• Court: Arizona Supreme Court

Page 634

433 P.2d 634

102 Ariz. 504

William C. SMITHERMAN, Petitioner, v. SUPERIOR COURT IN AND FOR the COUNTY OF PIMA, Respondent, and Roy J. Meyer, Real Party in Interest.

No. 8976--PR.

Supreme Court of Arizona, In Banc.

Nov. 15, 1967.

Rees, Estes & Browning, by Donald Estes, Tucson, Gentry, McNulty & Toci, Bisbee, for petitioner.

R. Lamar Couser, Tucson, for real party in interest.

McFARLAND, Vice Chief Justice:

Petitioner William C. Smitherman, hereinafter referred to as Smitherman, is an attorney engaged in the practice of law with offices in Cochise County, Arizona. Respondent Roy J. Meyer, the real party in interest, hereinafter referred to as Meyer, employed Smitherman in Cochise County to file a civil action in Cochise County Superior Court against two defendants--the Grand International Brotherhood of Locomotive Engineers and the Southern Pacific Company. In that action, defendant Grand International Brotherhood of Locomotive Engineers secured a dismissal as to it. The other defendant Southern Pacific Company was successful in having the action against it transferred to the Federal District Court at Tucson, Arizona. The employment contract beteen Meyer and Smitherman in that action was negotiated in Cochise County.

Meyer brought a malpractice action in the Superior Court of Pima County against Smitherman in two counts. The first count alleged negligence by Smitherman in failing to appeal from the order of dismissal of the action against the Grand International Brotherhood of Locomotive Engineers. The second count alleged that after removal of the action to the United States District Court, Smitherman was negligent in failing to request a jury trial and in agreeing to postpone the trial indefinitely.

Smitherman, in the malpractice case, within the time allowed to answer, filed a motion supported by affidavit for a change of venue to Cochise County, on the grounds that his residence was in Cochise County, and that his representation of Meyer was in that county. The court, by ex parte order, extended the time to file opposition to the motion for the change of venue. Within the time so extended plaintiff filed an opposition to the change of venue, supported by affidavit and exhibits. Thereafter, the motion for change of venue was denied by the Superior Court of Pima County. Smitherman petitioned the Court of Appeals, Division 2, for a writ of certiorari. The court of appeals, in a decision of February 24, 1967, 5 Ariz.App. 170, 424 P.2d 461, affirmed the order denying the motion for change of venue. This Court granted a petition for review of the decision of the court of appeals for the purpose of passing upon the question of venue of the action.

Smitherman contends that the trial court's order extending the time to file opposition to the change of venue was invalid. We agree with that part of the decision of the court of appeals which holds that the order extending the time to respond to the motion for change of venue Was valid.

The record shows that both Meyer and Smitherman are residents of Cochise County, and that Smitherman's employment and all of the acts set out in Count One took place in Cochise County. Meyer alleged, in Count Two, that Smitherman 'wilfully and intentionally did not request a jury trial' in the Federal District Court at Tucson (Pima County), although he was asked to do so by Meyer. He further alleged that Smitherman, by informal stipulation in the federal district court, agreed to postpone the cause of action indefinitely, 'with the result that plaintiff's (Meyer's) cause of action was uncommonly delayed in its prosecution, * * * ' Meyer contends the acts set out in Count Two were in Pima County.

In support of his allegation of indefinite postponement, Meyer attached a copy of a letter from Smitherman to William R. Denton, General Attorney for Southern Pacific Company, San Francisco, California, which read:

'Re: Meyer v. Southern Pacific Co. No. CIV 2107 Tucson, in The United States District Court For the District of Arizona (Your File: S--25071)

'Dear Bill:

'I advised Judge Walsh in Tucson by telephone today of our agreement to continue the pretrial hearing and trial dates of April 11, 1966, and April 22, 1966, pending the outcome of the arbitration proceedings.

'The Judge, on the basis of the call, indicated that he would vacate the pretrial and trial dates and that no written stipulation would be necessary. He wishes to be kept advised, through me, of the status of the arbitration proceedings so that he can give us a new trial date at the appropriate time.'

Since all of the acts alleged in Count One occurred in Cochise County, and since both defendants resided in Cochise County, there is no question but what, it this were the only count, the venue could not properly be laid in the Superior Court of Pima County. However, if Count Two states a cause of action in which Pima County has venue, then Meyer had the option of bringing the action in either Cochise County or Pima County. Ellsworth v. Layton, 97 Ariz. 115, 397 P.2d 450.

The facts alleged in County Two show that the acts which Meyer contends gave Pima County venue of this case were the failure of Smitherman to request a jury trial in the Federal District Court located in Pima County, and his telephone conversation from Cochise County to the Judge of the U.S. District Court in Pima County. These allegations show that Smitherman was not present in Pima County at the time he is alleged to have committed the acts for which Meyer seeks to recover. The general rule regarding venue is stated in 92 C.J.S. Venue § 4, pp. 670--671, as follows:

'* * * The trend of modern authority is toward the proposition that an action is properly brought wherever the trial court has jurisdiction over the person of defendant and can award adequate relief in proceedings against him personally * * * (T)he general test of venue under our statutes looks to the residence of one of the parties; the place where the cause of action arose and the situs of the subject of action are, in most states, tests only in classes of cases which stand as exceptions, although broad ones, to the rule.'

The statute in Arizona follows this general trend as stated in Corpus Juris Secundum. § 12--401, A.R.S., provides that:

'No person shall be sued out of the county in which he resides, except:

'10. When the foundation of the action is a crime, offense or trespass for which an action in damages may lie, the action may be brought in the county in which the crime, offense or trespass was committed or in the county in which the defendant or any of the several defendants reside or may be found, * * *'

Subsection 10 is an exception to the general rule. It was taken from the Texas statutes. This statute was interpreted by the Texas court in the case of Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, 7 L.R.A. 618 (1890), a case in which the defendant was sued for injury to plaintiff's wife because of acts committed by him in the yard of the plaintiff in a different county from that of his residence. The injury was in the nature of a trespass on the case. The court, in passing upon this question, stated:

'* * * Our statutes provide that no person who is an inhabitant of the state shall be sued out of the county of his domicile except in certain cases. Rev.St. art. 1198. Among the exceptions is the following: 'Where the foundation of the suit is some crime or offense or trespass for which a civil action in damages may lie, in which case the suit may be brought in the county where such crime or offense or trespass was committed, or in the county where the defendant has...