State Ex Rel. Chemical Tank Lines, Inc. v. Davis , 141 W. Va. 488 ( 1956 )

Lovins, Judge:

On the petition of Chemical Tank Lines, Inc., a corporation, a rule in mandamus was granted in vacation, returnable to the first day of the present term. The purpose of this proceeding is to require the Judge of the Common Pleas Court of Kanawha County to transfer a case now pending in such Court to the Circuit Court of Mason County, West Virginia.

A collision occurred between a motor vehicle owned by the Chemical Tank Lines, Inc., a corporation, driven by Clay Spurlock, a servant of the Chemical Tank Lines, Inc., and an automobile owned and operated by Raymond Ellis. The collision took place on or about the 2nd day of March, 1955, in Mason County, West Virginia.

As a result of the above mentioned collision, three actions at law were instituted, one by Raymond Ellis in the Common Pleas Court of Kanawha County on the 18th day of August, 1955. The defendants in the action instituted by Raymond Ellis are the Chemical Tank Lines, Inc., a corporation and Clay Spurlock. Raymond Ellis is a resident of Putnam County, West Virginia. Clay Spurlock is likewise a resident of Putnam County.

Another action was instituted by Cyrus Sowards against the Chemical Tank Lines, Inc., a corporation, in the Circuit Court of Putnam County. That action, on motion of the defendant, was transferred to the Circuit Court of Mason County and we are not further concerned with it in this proceeding.

On the 1st day of October, 1955, Chemical Tank Lines, Inc., a corporation, instituted an action against Raymond Ellis. Original and an alias summons were issued by the Clerk of the Circuit Court of Mason County, directed to the Sheriff of that County and returned “Not found in my bailiwick”. A pluries summons was issued by the Clerk of the Circuit Court of Mason County and directed to the Sheriff of Putnam County and served on Ellis by that official in Putnam County, West Virginia.

On or about the 29th day of November, 1955, the Chemical Tank Lines, Inc., a corporation, made a special appearance and filed a plea in abatement to the action pending in Kanawha County.

On the calling of the docket of the Common Pleas Court of Kanawha County, the Chemical Tank Lines, Inc., a corporation, appeared specially and contended that the case was not matured until November, 1955 rules. Nevertheless, the Judge of the Common Pleas Court, having been advised of the alleged pendency of an action in the Mason County Circuit Court, overruled a motion to transfer the action pending in the Common Pleas Court of Kanawha County to the Mason County Circuit Court and set the action for trial in the Common Pleas Court for the 28th day of December, 1955. A rule in mandamus was granted as stated above.

The relator contends that under Rule XIII, promulgated by this Court June 22, 1940, reported in 121 W. Va., pages xxi and xxiii, this action should be. transfer-: red to the Circuit Court of Mason County, West Virginia and there consolidated and tried with .the litigation therein instituted involving the accident.

The respondent contends that the Circuit Court of Mason County does not have jurisdiction of the action and that Mason County is not the proper venue for such trial.

It is shown in the record that the summons issued in the Kanawha County action has been duly served on the Chemical Tank Lines, Inc., a corporation, service having been accepted by the Auditor of this State acting for the Chemical Tank Lines, Inc., a foreign corporation authorized to do business in this state, and by service on Joe Ridler, a servant of the corporation. It is also shown by the record that the Chemical Tank Lines, Inc., a corporation, is the owner of the real and personal property situate in Kanawha County.

The defendant further contends that the summons issued by the Clerk of the Circuit Court of Mason County has not been properly served on Raymond Ellis, nor is there any likelihood of such summons being properly and legally served on Ellis. The defendant also contended that the suit in Mason County, instituted by the Chemical Tank Lines, Inc., a corporation, is not a pending action.

The issue therefore resolves itself into four questions: (a) Is the action brought by the Chemical Tank Lines, Inc., a corporation against Raymond Ellis in the Circuit Court of Mason County a pending action? (b) Does the Circuit Court of Mason County have jurisdiction of the litigation now pending between Ellis and the Chemical Tank Lines, Inc., a corporation? (c) Is Mason County, West Virginia, the proper venue for the trials of such actions? (d) Does the Chemical Tank Lines, Inc., a corporation, have a clear legal right to compel the transfer of the action now pending in the Common Pleas Court of Kanawha County to the Circuit Court of Mason County?

It is to he emphasized that the collision which is the foundation of this litigation, occurred in Mason County, West Virginia.

The relator in this proceeding bases its case on the requirements of the procedural rule respecting cross-actions in tort, approved by his Court on the 22nd day of June, 1940. The order adopting the rule contains the following language:

“* * * the rules appended hereto as a part of this order shall be and constitute rules governing pleading, practice and procedure in each trial court of record in this State pertaining to to * * * (b), cross-actions in tort, * *

121 W. Va., xxi. The rule respecting cross-actions in tort, so far as pertinent, reads as follows:

“In any action at law, when such action is based on negligence, the court shall inquire whether or not another action is pending based on the same occurrence wherein defendant in the first action is plaintiff and plaintiff in the first action is defendant; and, if it appear that such other action is pending in the same court, the court shall order a consolidation of the two actions.”

Section 1 (a), 121 W. Va. xxiii.

“* * * (c) If such actions are pending in different jurisdictions of the state, and if the parties are unable to agree on the court in which the combined actions shall be heard, the said combined actions shall be tried and determined in the circuit court of the county wherein the occurrence took place, provided either action was instituted therein; otherwise, in the circuit court of the county wherein the first action was instituted.”

Section 1 (c) 121 W. Va. xxiii.

The foregoing rule was adopted pursuant to Chapter 37, Section 4 of the Acts of the Legislature, 1935, which is permissive and provides that:

“The Supreme Court of Appeals may, from time to time, make and promulgate general rules and regulations governing pleading, practice and procedure in such court and in all other courts of record of this state. All statutes relating to pleading, practice and procedure shall have force and effect only as rules of court and shall remain in effect unless and until modified, suspended or annulled by rules promulgated pursuant to the provisions of this section. * *

Without passing on the question as to whether the foregoing statute was necessary to authorize this Court to adopt and promulgate such rule, we advert to the holding of this Court in Teter v. George, 86 W. Va. 454, 103 S. E. 275, where the Court held:

“ Courts have inherent power and authority to prescribe and enforce rules and regulations for the conduct of their business in accordance with established procedure, not inconsistent with organic or statutory law, nor unreasonable, oppressive or obstructive of common right.”

Piano Company v. Burgner, 89 W. Va. 475, 109 S. E. 491; Kemble v. Wiltison, et al., 92 W. Va. 32, 114 S. E. 369. See Wagner v. Coal Co., 100 W. Va. 117, 130 S. E. 94; 21 M. J., Rules of Court, §1.

We perceive no violation of statutory or organic law, nor is the rule unreasonable, oppressive or obstructive of common right. We are therefore constrained to hold the rule valid and apply it to the facts of this case.

The defendant asserts that the Circuit Court of Mason County does not have jurisdiction, nor is it the proper venue for hearing and determination of the litigation between the Chemical Tank Lines, Inc., a corporation and Eaymond Ellis.

Jurisdiction is not procedural, but the constitution of this state gives circuit courts general jurisdiction of similar actions where the amount in controversy, ex-elusive of interest, exceeds fifty dollars. The amount in controversy in the two actions here pending far exceeds that amount. Jurisdiction of similar cases as is now pending in the Circuit Court of Mason County and the Common Pleas Court of Kanawha County is conferred by the constitution upon the circuit courts. Section 12, Article VIII, Constitution of West Virginia. See State v. Houchins, 96 W. Va. 375, 123 S. E. 185; Colliery Co. v. Ott, 99 W. Va. 663, 664, 129 S. E. 708.

It may be argued however, that the Circuit Court of Mason County does not have jurisdiction of the person of Raymond Ellis. That is correct if Ellis were in fact a defendant. But he is plaintiff in the Kanawha County action, and upon the transfer of that action from the Common Pleas Court of Kanawha County to the Circuit Court of Mason County, he will remain such plaintiff.

Venue is somewhat different from jurisdiction. Venue is defined in Black’s Law Dictionary, Fourth Edition, Page 1727, as:

“A neighborhood; the neighborhood, place or county in which an injury is declared to have been done, or fact declared to have happened.”

Venue designates the county or place in which a court having jurisdiction may properly hear and determine the case. Smith Corp. v Dailey, 136 W. Va. 380, 67 S. E. 2d 523; Southern Sand & Gravel Co. v. Massaponax S. & G. Corp. (Va.) 133 S. E. 812. See Burks Pleading and Practice, Second Edition, §175; Moore v. N. & W. Railway Co., (Va.) 98 S. E. 636.

In the case of Arganbright v. Good (Calif. App.) 116 P. 2d 186, the following language appears:

“ ‘Jurisdiction implies or imports the power of the court, venue the place of action.’ ”.

Venue is procedural and statutes relating thereto are so treated. Venue is not a jurisdictional question in a strict sense oí the word. 92 C. J. S., Venue, §75; 56 Am. Jur., Venue, §2 et seq.

The argument by the defendant that there is no venue for these actions in Mason County disappears.

The defendant contends that the action brought by the Chemical Tank Lines, Inc., a corporation, is not pending at this time in the Circuit Court of Mason County, since there has been no service of the summons. Certainly the process issuing out of the office of the Clerk of the Circuit Court of Mason County has not been properly served on Raymond Ellis. An action is pending upon the issuance of a writ of summons and does not date from the time of the service of the summons. Code, 56-3-4; Hogg’s Pleading and Forms, 4th Ed, Sections 1 and 16; Lambert v. Ensign Mfg. Co., 42 W. Va. 813, 815, 26 S. E. 431; Blowpipe Co. v. Spencer, 46 W. Va. 590, 33 S. E. 342; The Geiser Mfg. Co. v. Chewning, 52 W. Va. 523, 533, 44 S. E. 193; Oil and Gas Well Supply Co. v. Gartlan and Ahner, 58 W. Va. 267, 272, 52 S. E. 524. See McKinley v. Queen, 125 W. Va. 619, 621, 25 S. E. 2d 763, for a discussion of the difference in the issuance of a writ of subpoena commencing a suit in equity and a summons commencing a law action.

True, the action of Raymond Ellis v. Chemical Tank Lines, Inc., a corporation, was commenced first in the Common Pleas Court of Kanawha County, but the occurrence took place in Mason County. The two actions arise out of the same occurrence and come within the plain provisions of the procedural rule. A denial of the application of the procedural rule relating to cross-actions in tort would seem to emasculate the rule which we are not disposed to do. Therefore, we think that the Chemical Tank Lines, Inc., a corporation, is well within its rights in moving for a transfer and a consolidation of the two actions.

The application of the procedural rule here considered is predicated upon good faith in the institution of actions. The rule will not be invoked when actions are commenced for the purpose of delay or harassment in courts lacking jurisdiction of the person and subject matter.

A peremptory writ of mandamus is awarded requiring the law action of Raymond Ellis v. Chemical Tank Lines, Inc., a corporation, now pending in the Common Pleas Court of Kanawha County, to be transferred to the Circuit Court of Mason County for the purpose of consolidation and trial in such Circuit Court.

Writ awarded.