Southern Ry. Co. v. Fitzpatrick

• Decision Date: 30 June 1915
• Docket Number: 8 Div. 828
• Citation: 195 Ala. 328,70 So. 164
• Parties: SOUTHERN RY. CO. v. FITZPATRICK.
• Court: Alabama Supreme Court

70 So. 164

195 Ala. 328

SOUTHERN RY. CO. v. FITZPATRICK.

8 Div. 828

Supreme Court of Alabama

June 30, 1915

Rehearing Denied Dec. 2, 1915

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by Newton Fitzpatrick against the Southern Railway Company for damages for the death of a cow. Judgment for plaintiff and defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911 (Acts 1911, p. 449). Affirmed.

Mayfield and Thomas, JJ., dissenting.

The action was stated in four counts, and each declared for damages for killing a cow by running a train on, over, or against her. The complaint was filed in the justice of the peace court in the city of New Decatur. Defendant filed the following special plea:

Comes the defendant in the above-styled cause, specially for the purpose of filing this plea, and says that this court has no jurisdiction to determine this cause for this: The defendant is a body corporate, organized under the laws of the state of Virginia, and it has no line of railway in New Decatur, Ala., nor has it any agent in said precinct, nor is it doing business by agent in said precinct, but that it is engaged in the railway business in the state of Alabama, and has an agent at Decatur, precinct No. 1, in said state and county, and that plaintiff's cause of action, if he has any, arose outside of precinct No. 19, and in precinct No. 1 and defendant makes oath that this plea is true. Wherefore defendant prays that this suit be dismissed.

Wert & Lynne, of Decatur, for appellant.

C.L. Price, of New Decatur, and M. Hutson, of Decatur, for appellee.

PER CURIAM.

The majority are of the opinion that the trial court did not err in sustaining the plaintiff's demurrer to the defendant's special plea. The local act of 1901 (page 1970) authorized the trial of this cause in the precinct in which it was tried, and provided that this defendant could be sued in said precinct; and this local act has not been repealed by the Code. Nor are we impressed with the suggestion that said local act is unconstitutional.

The judgment of the law and equity court is affirmed.

Affirmed.

ANDERSON, C.J., and McCLELLAN, SAYRE, SOMERVILLE, and GARDNER, JJ., concur.

MAYFIELD and THOMAS, JJ. (dissenting).

The majority have overlooked the distinction between "jurisdiction" and "venue." The local statute did not purport to deal with the question of venue that is, with the particular court or precinct in which actions should be brought. It purported to deal only with the jurisdiction and authority of justices of the peace and constables in the two precincts named. Its only purposed object was to extend the territorial jurisdiction of justices of the peace and constables of the two precincts named. It did not authorize or attempt to authorize a plaintiff to sue in a different precinct from that in which he could theretofore sue, but, at most, to authorize him to sue before a justice or an officer before whom he could not theretofore sue, and to have an officer execute the process who could not theretofore execute it. It did not purport to take away from the citizens of Morgan county the right guaranteed to them by the Constitution and the statutes to be sued in a justice court in the precinct of their residence, or in the one in which the cause of action arose, etc. It only purported to authorize different officers to try their causes, when sued where the law provides they may be sued.

Statutes as to jurisdiction of necessity pertain and relate to the tribunal, court, or officer who is to exercise the jurisdiction conferred. These statutes, of course, as the one in question, may relate to territorial jurisdiction, as well as to that of the person or of the subject-matter. Venue statutes, however, do not relate to jurisdiction, territorial, personal, or of the subject-matter; they are intended to apply, and do merely apply, to direct in which one of the several tribunals, each and all of which have jurisdiction, the trial shall be had, or at which one of several places the trial shall be had, when one tribunal, court, or officer exercises the same jurisdiction at several places. If a tribunal, court, or officer has no jurisdiction or power to try a case at a given place, or at any place, then there can be no room or reason for a statute as to venue. The act or judgment in such a case is absolutely void, even on collateral attack, if the want of jurisdiction appears on the face of the proceeding. It is only when the tribunal, court, or officer has the jurisdiction or power to proceed or to act at several different places that a statute as to venue can have any excuse for existence. The venue statute, of course, presupposes that the tribunal, court, or officer has jurisdiction or power to proceed or act at different places, and then the sole purpose and effect of the statute as to venue is to direct at which of these several places the jurisdiction in the particular case may be exercised.

Jurisdiction and venue are often confused, by using the word "jurisdiction" when "venue" is meant. This confusion of terms has been frequently pointed out by this and other courts. The terms were so confused by the pleaders in this case, and this probably confused or misled the trial court, as well as the majority of this court. The law or statute which makes the plea good in this case is section 4648 of the Code, which reads as follows:

"Unless otherwise provided, no person can be

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