44 Ala. 218 | Ala. | 1870
Lead Opinion
The constitution (article 6, § 8,) provides, that a chancery court shall be held in each county at a place therein to be fixed by law. No action has been taken by the legislature in compliance with this section. In 1868, the State was divided into chancery divisions and districts, agreeably to the 7th section of article 6. By that act, Barbour and Henry counties were made one district, with the place of holding the court at Clayton, in Barbour
Under these circumstances, has the defendant such a right of venue, given by the constitution, that he can not be sued out of the county of his residence, or of the subject-matter of the suit?
Two terms of the circuit court are required to be held in each county annually, (Const, art. 6, 㤠6,) and the time and place are appointed. Yet the practice of suing parties out of the county of their residence by means of branch writs is frequent, and directed by statute, and the right to do so has heretofore never been questioned.
By the 8 th section of the declaration of rights, a person accused of crime can not be tried, Against his consent, elsewhere than in the district or county in which it is committed. Yet, the jurisdiction of offenses committed on the boundary of two or more counties, or within a quarter of a mile thereof, is in either county by statute; a district being thus formed greater than the county. — Rev. Code, § 3945.
The construction contended for by the appellant would forbid a change of venue of civil causes in any of the courts, except by consent of the parties, and frequently defeat the right to an impartial trial. In addition to this, the plaintiff is as much entitled as the defendant to claim that the venue shall bp in the county of his residence.
We decide, that article 6, section 8, of the constitution of the State does not confine the venue of a chancery cause to the county of the defendant’s residence, or in which is situated the property which is the subject of the suit.
. The judgment is affirmed.
Dissenting Opinion
(dissenting.) — With every sentiment of respect for the majority of the court, I do not feel able consistently to agree with the reasoning or conclusion of the opinion just delivered.
“ Sec. 5. Provided, however, that the circuit court shall have equity jurisdiction concurrent with the courts of chancery, in all cases for divorce, and cases in which the value of the matter in controversy does not exceed the sum of five thousand dollars.
“ Sec. 7. The general assembly shall have power to establish a court or courts of chancery with original and appellate jurisdiction. The State shall be divided by the general assembly into convenient chancery divisions, and .the divisions into districts; and for each division there shall be a chancellor, who shall, after his election or appointment, reside in the division for which he shall have been elected or appointed.
“ Sec. 8. A chancery court shall be held in each county, at a place therein to be fixed by law, and the chancellors may hold courts for each other, when they deem it expedient.” — Const. Ala. 1867, art. 6, §§ 5, 7, 8.
The 8th section of the constitution above quoted, is a proviso which limits the power of the general assembly, in establishing chancery districts, to each county in every division throughout the State. It is a constitutional designation of the chancery districts of the State, which the general assembly can not alter or depart from. And it is the duty of this tribunal to denounce any attempt at such departure as an effort to infringe the fundamental law, and to declare it void. No two or more counties can be united by law in one chancery district, without what seems to me a disregard of this positive constitutional provision, which is expressed in language not capable of misconstruction. The language of the constitution is affirmative and imperative, and there can be no reasonable doubt about its meaning. In such a case, this court has no choice but to declare the law void, which is not in conformity with the constitution. To do otherwise, would not be to support the constitution, but to fritter it away, and in the end overturn it.
The true effect of the constitution is to make each county in the State a chancery district. The legislature must recognize this number at least, and may make as many more as it may think fit, and fix the places, in the counties, for the courts to be held. A law which transcends these bounds is at war with the constitution, and is void for that reason. — Marbury v. Madison, 1 Cranch, 137, 176, 179. It follows from this, that so much of the act of the general assembly, entitled “An act to amend sections 4, 5, 14, and 15 of an act in relation to the chancery courts in Alabama,” approved the 6th day of October, 1868, as combines the counties of Barbour and Henry into one chancery district, is unconstitutional and void. — Pamph. Acts 1868, p. 209, § 1, No. 7.
The present law of the State requires that the bill shall be filed in the chancery district — that is, the county — in which the defendants or a material defendant resides. — Revised Code, § 3326.
In this case the defendant was sued out of his county— that is, out of his chancery district; that is, out of the district in which he resides. This he can set up in his defense by way of plea in his answer. — Rev. Code, § 3349, This plea shows that the court has no jurisdiction over the defendant according to law. The bill then ought to have been abated.
I therefore think that the true construction of the constitution requires a reversal of the decree of the court below, and the dismissal of the bill.
