Opinion
88-9.
March 24, 1989.
Thomas W. Harmon of Williams, Harmon and Hardegree, Anniston, for petitioners.
Brenda S. Stedham of Merrill, Porch, Doster Dillon, Anniston, for respondent Swindle.
Joe C. Carroll, Birmingham, for respondent Etowah County.
Plaintiffs Harry and Yoshiko Setser seek a writ of mandamus directed to the Honorable Samuel H. Monk, Circuit Judge, Calhoun County, Alabama, compelling him to set aside his order granting the motion of defendants Etowah County and the City of Glencoe to transfer the Setsers' negligence suit from Calhoun County to Etowah County. That order was based upon Ala. Code 1975, § 6-3-11, which requires that a civil action against a county or a municipality for damages based on personal injury, death, or property damage be filed either in the county sued or in the county where the municipality sued is located, or in the county where the act or omission complained of occurred.
Because the original defendant, Setsuko Swindle, is a resident of Calhoun County, the case was properly filed in Calhoun County; Etowah County and the City of Glencoe were subsequently added. Rule 82(b)(1)(A) and (c), A.R.Civ.P. Therefore, notwithstanding § 6-3-11, the trial court's order is due to be reversed. See Ex parte City of Huntsville, 541 So.2d 1094 (Ala. 1989), decided this date. See, also, Elmore County Commission v. Ragona, 540 So.2d 720 (Ala. 1989), and Ex parte Shelby County, 516 So.2d 525 (Ala. 1987).
The petition for writ of mandamus is granted and the trial court is directed to set aside its order transferring the case to Etowah County.
WRIT GRANTED.
HORNSBY, C.J., and JONES, ADAMS and KENNEDY, JJ., concur.
MADDOX, ALMON, SHORES and HOUSTON, JJ., dissent.
The majority, applying the venue provisions of Rule 82(b)(1)(A) and (c), Ala.R.Civ.P., and cases of this Court applying that Rule in causes of actions arising before July 14, 1987, the effective date of Ala. Acts 1987, No. 87-391, which is now carried in Code 1975, as § 6-3-11, concludes that the writ should be granted.
The learned trial judge was imminently correct when he applied the provisions of § 6-3-11. The constitution of this State, in Amendment No. 328, § 6.11, specifically provides that: "These rules [adopted by this Court] may be changed by a general act of statewide application."
The Legislature intended that venue "for all civil actions for damages for personal injury, death or property damage filed against a county or against a municipality shall be in the county or in the county within which the municipality is located or in the county in which the act or omission complained of occurred." In this case, the municipality is located in Etowah County, and the act or omission complained of occurred in Etowah County. How can Rule 82, which so plainly is in conflict with the legislative mandate, control? I do not think it does. I dissent.
ALMON, J., concurs.
I dissent, for the reasons set out in my dissenting opinion in Ex parte City of Huntsville, 541 So.2d 1094 (Ala. 1989).