Opinion
Decided March 8, 1926.
Writ of prohibition — Venue in action against railroad cannot be determined thereby, when — Section 11273, General Code — Prohibition lies only when trial court without jurisdiction of subject-matter — Or legal or equitable remedy not available — Limiting, by statute, venue in transitory actions.
1. Railroad sued for damages for delay in shipment in a county wherein it did not reside, and in which the cause of action did not arise, held not entitled to a writ of prohibition forbidding trial of cause in that county; Section 11273, General Code, as amended by 109 Ohio Laws, p. 81, being only a venue statute, and an adequate remedy at law being available.
2. Generally, in transitory actions venue may be laid in county which plaintiff chooses, though it may be limited by statute.
3. Writ of prohibition should not issue unless party has no adequate remedy either in law or equity, or unless court has no jurisdiction of subject-matter.
IN PROHIBITION.
Messrs. Harmon, Colston, Goldsmith Hoadly, for plaintiff.
Messrs. Hightower, O'Brien Porter, for defendants.
The relator prosecutes this action against the defendants, as judges of the court of common pleas of Hamilton county, Ohio, seeking to prohibit them, or any of them, from hearing or trying cause No. 191778, on the docket of said court, an action wherein the St. Louis, Troy Eastern Railroad Company is plaintiff, and the Cincinnati, New Orleans Texas Pacific Railway Company is defendant. In that action, the plaintiff claimed damages from the defendant for delay in delivering a number of cars of coal in St. Louis, the destination named in the bill of lading. The coal was shipped from points in Tennessee and Kentucky. The answer denied generally the allegation of negligence, and pleaded one of the conditions contained in the bill of lading as an excuse for the delay in delivering such shipment of coal. The Cincinnati, New Orleans Texas Pacific Railway Company filed a motion to dismiss the action, because it was not brought in the county in this state in which the plaintiff resided, nor was it brought in the county in which the cause of action, or any part thereof, arose. Judge Stanley Roettinger overruled this motion and set the case for hearing on January 25, 1926. The relator prayed that a temporary writ of prohibition, directed to said defendants, judges of the court of common pleas, be granted, and that on full hearing a permanent writ of prohibition be issued.
The ground on which the relator claims that it is entitled to a writ of prohibition is that the court and the judges thereof, by the provisions of Section 11273, General Code, as amended 109 Ohio Laws, p. 81, have no right and are forbidden to try said cause. We gather from the brief of counsel that it is claimed that Section 11273 is a statute limiting the jurisdiction of the courts of common pleas in the trial of certain causes of action. We do not so understand the section. It is a venue statute. The general rule is that in transitory actions the venue may be laid in any county the plaintiff chooses. That is, he may bring suit wherever he may find the defendant, and lay his cause of action to have service there, even though the cause of action arose in a foreign jurisdiction. While this is a general rule, venue may be limited by statute. This principle was stated in 3 Blackstone's Commentaries, 294, as follows:
"In some cases, however, by statute, the venue in transitory actions must be laid in the county where the matter occurred, or where certain parties reside."
This seems to us to settle the question that Section 11273, General Code, is a venue statute.
The Supreme Court of Ohio has repeatedly passed on the question of issuing writs of prohibition. The most recent pronouncements on that point were in State, ex rel. Carmody, v. Justice, Judge, 114 Ohio St. 94, 150 N.E. 430, decided February 9, 1926, and State, ex rel. Harrison, Taxpayer, v. Perry, Coroner, 113 Ohio St. 641, 150 N.E. 78, decided December 15, 1925. These cases cite and review all the Ohio cases on the subject of prohibition, and many cases from other jurisdictions. The holding is that a writ of prohibition should not issue unless it is shown that the party does not have an adequate remedy either in law or in equity, or unless the court below has no jurisdiction of the subject-matter of the action.
We need not comment on the jurisdiction of the court of common pleas in tort cases further than to say that it has such jurisdiction. In the cases of Loftus v. Pennsylvania R. Co., 107 Ohio St. 352, 140 N.E. 94, and Jamieson v. Davis, Agent, 110 Ohio St. 636, 144 N.E. 291, the relief was for damages growing out of tort. Motions were filed in each of those cases to quash the service of summons, on the ground that the plaintiff could not prosecute his action in Cuyahoga county, under Section 11273, General Code. The motions were heard, and proceedings in error were prosecuted to the Court of Appeals and the Supreme Court. The statute was held constitutional, and the cases dismissed. These and other cases establish that the relator has a remedy at law.
In the Carmody case, supra, the court holds:
"A writ of prohibition will not be awarded to prevent an anticipated erroneous judgment. An adequate remedy is available by proceeding in error."
We have limited our consideration of this case to the one question of whether or not a writ of prohibition should issue. On authority of the cases cited, our conclusion is that Section 11273, General Code, is a venue statute, and that the relator has an adequate remedy at law in an error proceeding.
The writ of prohibition will be denied.
Writ denied.
BUCHWALTER, P.J., and HAMILTON, J., concur.