62 S.W.3d 405 | Mo. | 2001
Dissenting Opinion
dissenting.
I cannot join the Court’s summary issuance of a peremptory writ in this matter both because it is an inappropriately casual use of the mandamus power and because petitioner has not demonstrated any entitlement to relief, even under the standard announced in Linthicum.
The Court issues a writ directing the trial court to “determine venue in accord with Linthicum.” While the phrasing leaves some doubt, I take this to mean that the Court is directing the circuit court to reconsider its ruling on the motion to transfer venue in light of the new rule announced in Linthicum. This is a completely inappropriate use of mandamus, a
Mandamus would be the appropriate remedy to order a change of venue here, but the Court cannot grant that relief because petitioners have failed to establish, even in light of the new rule announced in Linthicum, that they are entitled to a change of venue. The Court properly notes that Linthicum interprets only section 508.010. Plaintiff here, however, posits venue not on that statute, but on section 508.070, the motor carrier venue statute.
If the Court simply wishes the trial court to reconsider its ruling in light of Linthicum, then issuing a writ of mandamus is unnecessary, as well as improper. Simply dismissing the petition without prejudice to refiling it after any reconsideration by the lower court would accomplish the same result and do no violence to
. State ex rel. Kelley v. Mitchell, 595 S.W.2d 261, 266 (Mo. banc 1980).
. Id. (quoting State ex rel. Porter v. Hudson, 226 Mo. 239, 126 S.W. 733, 740 (Mo. banc 1910)).
. State ex rel. Missouri Growth Ass'n v. State Tax Comm'n, 998 S.W.2d 786, 788 (Mo. banc 1999).
. See Naugher v. Mallory, 631 S.W.2d 370, 374 (Mo.App.1982) (mandamus will not lie to command performance of a different act from that requested to be performed by the respondent).
. At least it appears that this is the case. Since the Court decides this case without benefit of briefing, the exact issues it decides are unclear.
. Rule 84.24(j).
Lead Opinion
A motor vehicle accident occurred in Newton County, Missouri. The current lawsuit was filed in Jackson County by a resident of Newton County, naming only Landstar as a defendant. Landstar is a Florida corporation whose registered agent is located in St. Louis County. In this posture, Jackson County was a county of proper venue under section 508.070.
Shortly after the lawsuit was filed, an amended petition was filed naming additional defendants, including Bryan and Dorothy Lehew. Bryan is a resident of Ohio and allegedly Landstar’s agent. Le-hew is a resident of Newton County, the plaintiffs mother, and the driver of the vehicle in which the plaintiff was a passenger.
After the addition of these defendants, Landstar and Bryan sought a change of venue. They asserted that section 508.010 became the proper venue statute and that Jackson County was no longer a county of proper venue. The circuit court overruled the motions for change of venue.
Landstar and Bryan petition the Court for a writ of prohibition or mandamus, alleging that Jackson County is no longer a county of proper venue. At the time the trial court ruled on their motions for transfer, it did not have the benefit of this Court’s opinion in State ex rel. Linthicum v. Calvin, 57 S.W.3d 855 (Mo. banc 2001). Linthicum holds that for purposes of section 508.010, a suit instituted by summons is “brought” whenever a plaintiff brings a defendant into a lawsuit, whether by original petition or by amended petition.
A peremptory writ of mandamus is ordered to issue directing the trial court to determine venue in accord with Linthi-cum.
. All statutory references are to RSMo 2000.