Southern Sand & Gravel Co. Inc v. Massaponax Sand &

• Decision Date: 17 June 1926
• Court: Virginia Supreme Court
• Parties: SOUTHERN SAND & GRAVEL CO., Inc., v. MASSAPONAX SAND & GRAVEL CORPORATION et al.

133 S.E. 812

SOUTHERN SAND & GRAVEL CO., Inc.,

v. MASSAPONAX SAND &GRAVEL CORPORATION et al.

Supreme Court of Appeals of Virginia.

June 17, 1926.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Jurisdiction (Of Courts); Venue.]

Appeal from Circuit Court of City of Richmond.

Suit by the Southern Sand & Gravel Company against the Massaponax Sand & Gravel Corporation and another. A temporary injunction in favor of plaintiff was set aside, and plaintiff appeals. Reversed and remanded, with instructions.

Pollard & Smith and Christian & Lamb, all of Richmond, for appellant.

J. R. Tucker, of Richmond, and C. O'Conor Goolrick, of Fredericksburg, for appellees.

WEST, J. On April 17, 1925, after notice to the defendants, Southern Sand & Gravel Company, Incorporated, complainant, presented to the circuit court of the city of Richmond a bill in equity, addressed to the judge of said court, praying that Massaponax Sand & Gravel Corporation and Massaponax Railroad Company, defendants, be required and directed to forthwith replace a railroad crossing which complainant had constructed and was lawfully maintaining and operating across a strip of land in Spotsylvania county, Va., owned and used by the defendant railroad company as a right of way for its railroad, which crossing had been wrongfully torn out by the defendants on April 1, 1925; and that, when the crossing shall have been replaced under the direction of the court, the defendants, their officers, agents, and servants, be enjoined and restrained from removing, interfering with, or in any way molesting complainant's use of the same.

Both complainant and defendants are engaged in the business of mining, washing, and selling gravel for commercial purposes, in the county of Spotsylvania, and the railroads were used by them for transporting the products of their mines.

Upon the hearing on the bill of complainant and an affidavit of Charles L. Ruflin, president of the defendant corporations, the answer of the defendants to the bill which had not been filed as an answer thereto, being annexed to and made a part of the affidavit, the circuit court of the city of Richmond, on the 17th day of April, 1925, granted the injunction prayed for, "requiring and directing the defendants, their officers, agents, and servants, to replace, on or before Monday, April 20, 1925, at 12 o'clock noon, the crossing mentioned in the bill, in the same condition in which the same existed before April 1, 1925, and enjoining and restraining theaforesaid parties, and all of them, from interfering with or in any way molesting or removing the said crossing after the same shall have been so replaced, " the injunction to expire on the first Monday in October, 1925, unless sooner enlarged or dissolved. Both complainant and defendants were represented by counsel, and the order further provided that the cause be sent to rules to be matured according to law.

Process, returnable to the third Monday in April, 1925, requiring the defendants to answer the bill, was served upon W. Creed Davis, vice president of the two defendant corporations, on April IS, 1925, in the city of Richmond, where he resides and where the principal office of each defendant is located. At rules, the third Monday in April, 1925, complainant filed its bill, and the defendants not appearing, a decree nisi was entered against them. At rules, the last Monday in April, 1925, the defendants still failing to appear, plead, answer, or demur, the bill was taken for confessed and the cause set for hearing.

On May 15, 1925, defendants by counsel appeared specially and moved the court to dismiss the temporary injunction granted on April 17, 1925, on the ground that the court was without jurisdiction to hear and determine the case. Upon consideration of arguments by counsel, the court, being of opinion that it was without jurisdiction to hear or determine the case, entered a decree dissolving the injunction, dismissing the bill, and striking the cause from the docket. This appeal is from that decree.

The only assignment of error is the action of the court in entering this decree.

Defendants concede that the bill is a "pure bill of injunction" and that the circuit court of the city of Richmond had the authority under section 6319 to award the injunction of April 17, 1925; but contend that the jurisdiction of the case thereupon passed, under sections 6318 and 6319, to the circuit court of the county of Spotsylvania, where the act enjoined was done.

The complainant concedes that the defendants had the right, by filing in due time a plea in abatement under section 6105, to have the case heard by the Spotsylvania court, but insists that the making of their answer a part of the Ruffin affidavit was a filing of the answer in the cause, which now precludes their right to file such plea. With its contention as to the answer we cannot concur. It seems clear to us that the making of the answer a part of the affidavit was not a filing of the answer in the cause, within the intendment of the law. Besides, the record shows that the defendants failed to appear, plead, answer, or demur, and that the bill was taken for confessed as to them.

Did the circuit court of the city of Richmond have jurisdiction to hear and de termine the case, or was such jurisdiction vested exclusively in the circuit court of Spotsylvania?

By "jurisdiction" is meant the inherent power to decide the case; while "venue" designates the particular county or city in which a court having such jurisdiction may, in the first instance, properly hear and determine the case.

A proper disposition of the questions involved will require some discussion of sections 6318, 6319, 6321, 5890, and 6105, Virginia Code 1919, which, so far as material here, provide as follows:

"Sec. 6318. Jurisdiction of a bill for an injunction to any judgment or judicial proceeding shall be in the court in which the judgment was rendered or such proceeding is pending;

* * * and jurisdiction of an injunction to any other act or proceeding shall be in the circuit court of the county, or the circuit, corporation, or other court of the city, having chancery jurisdiction, in which the act or proceeding is to be done, or is doing, or apprehended.

"Sec. 6319. Every judge of a circuit or corporation court or of a city court having chancery jurisdiction shall have a general jurisdiction in awarding injunctions. * * * "

"Sec. 6321. Every order, awarding an injunction, made under the two preceding sections, shall be directed to the clerk of such court as has jurisdiction under section sixty-three hundred and eighteen and the proceedings thereupon shall be as if the order had been made by such court, or the judge thereof."

"Sec. 5890. * * * They [the circuit courts] shall have original and general jurisdiction of all cases in chancery and civil cases at law. * * * "

"Sec. 6105. Where the declaration or bill shows on its face proper matter for the jurisdiction of the court no exception for want of such jurisdiction shall be allowed unless it be taken by plea in abatement. No such plea

* * * in abatement shall be received after the defendant has demurred, pleaded in bar or answered to the declaration or bill, " nor after the rules next succeeding the rules at which the declaration or bill is filed.

It is apparent from the language used in section 5890 that the state of Virginia has granted to her circuit courts the power to hear and determine all cases in chancery arising within the bounds of the commonwealth. This jurisdiction, Mr. Lile, in his work on Equity Pleading and Practice (2d Ed.) designates as "potential" jurisdiction. Without such jurisdiction the judgment of the court is void. With it and the serving of valid process on the parties in a particular case, the court has what Mr. Lile terms "active" jurisdiction of the case, and can hear and determine the same.

At page 13, § 23, this author says:

" * * * the term venue denotes the particular county or corporation in which a given controversy is, in the first instance, properly triable. In short, venue has to do with geographical or territorial considerations, whereas juris- diction is concerned with questions of inherent judicial power.

"Thus, as already shown, every circuit and corporation court in Virginia (subject to a few statutory exceptions, to be noted later) is vested with complete equity jurisdiction; and consequently, so far as concerns questions of jurisdiction, every such court has the power to hear and determine any equity cause brought before it—and this without regard to the county or corporation in which the parties reside, or the controversy arose, or in which the subject-matter is."

Discussing the venue of injunction suits under Virginia Code 1919, § 6318, Mr. Lile, in chapter XXVII of the same book, at section 358, says:

"In thus designating the courts of particular localities for the trial and determination of injunction suits, it was scarcely the purpose of the statute to confer (an already inherent) jurisdiction, but rather, it would seem, in spite of its somewhat mandatory language, merely to conserve the convenience of the parties, in analogy to the general statutes of venue. In other words, the specific localities mentioned are merely cumulative, and are but extensions of the general statutory provisions for venue of judicial proceedings. This conclusion is strengthened by the familiar principle that an additional remedy or mode of procedure for the exercise of an already existing right of jurisdiction, is, in the absence of restrictive language, to be interpreted as cumulative, and not as exclusive of existing remedies or practice.

"These considerations warrant the conclusion that the statutory designation of specific localities in which suits for injunctions are to be instituted and heard, is directory and not mandatory—and is to be interpreted as authorizing an additional venue, and not as conferring-or...