545 So. 2d 16 | Ala. | 1989
This venue case arises out of an action by Buddy's Marineland, Inc., against Birmingham Federal Savings and Loan Association *17 (hereinafter "Birmingham Federal") for declaratory relief regarding the interpretation of an agreement between the two parties concerning the assignment of a particular promissory note.1 Buddy's Marineland sued in the Bessemer Division of the Jefferson County Circuit Court; Birmingham Federal filed a motion to dismiss or, in the alternative, to transfer the case to the Birmingham Division. That motion was denied. A bench trial followed, resulting in a judgment in favor of Buddy's Marineland. Birmingham Federal then filed a motion for a new trial based on improper venue, which the trial court denied. This appeal followed.
The sole issue is whether the trial court erred in denying the defendant's motion for a new trial based on improper venue. The parties do not dispute the propriety of the filing of this action in Jefferson County. Rather, the question is in which of the two divisions, Bessemer or Birmingham, it should have been filed.
The burden of proving improper venue rests upon the party raising the issue. See Ex parte Harrington Mfg. Co.,
Code 1975, §
"Whenever it shall appear to the court that any case filed therein should have been brought in another court in the same county, the court shall make an order transferring the case to the proper court, and the clerk or register shall forthwith certify the pleadings, proceeds, costs and order to the court to which the case is transferred, and the case shall be docketed and proceed in the court to which it is transferred, and the costs accrued in the court in which the case was originally filed shall abide by the result of the case in the court to which transferred." (Emphasis added.)
We have recognized the rule that, absent a waiver, an action brought in Jefferson County must be brought in the Bessemer Division "if it 'arises' within the territorial boundaries of the Bessemer Cutoff." See Ex parte Alabama Mobile Homes, Inc.,
In the present case, the record contains sparse evidence with regard to either party's contentions concerning where this claim arose. However, the burden is upon the defendant as the moving party to show that venue was improper. This it has unquestionably failed to do. Therefore, the judgment of the trial court is due to be affirmed.
AFFIRMED.
JONES, SHORES, HOUSTON and KENNEDY, JJ., concur.