Fulmore v. Brady , 44 Ala. 218 ( 1870 )

B. F. SAFFOLD, J.

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 county. — Acts 1868, p. 47. It is evident that no court can be held in a county, unless some place where it shall be held is appointed by law, and also, that there is no power in the State which can compel the legislature to fix a place.

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.

Peck;, C. J., concurred.