Ray v. Hey

396 S.E.2d 702, 183 W. Va. 521

• Court: West Virginia Supreme Court
• Decided: September 21, 1990
• Docket: 19613
• Status: Published

Opinions

NEELY, Chief Justice:

Everett W. Ray, Lennie C. Ray, Ralph C. Morris and Kathryn H. Morris seek a writ of prohibition against the Honorable John Hey, Judge of the Circuit Court of Kana-wha County, because he dismissed for improper venue the suits they filed against One Valley Bank of Summersville, F.B. Tal-lamy, trustee, and One Valley Corporation, N.A. Both suits sought an injunction to stop the sale of certain land located in Nicholas County on which the defendant bank held a deed of trust, allegedly in default, that named Mr. Tallamy as trustee. In seeking a writ of prohibition, the Rays and Morrises raise several arguments whose merits need not be discussed, because we conclude Judge Hey’s dismissal of both suits for improper venue was proper.

On 17 January 1990, the Rays and the Morrises instituted suit in the Circuit Court of Kanawha County seeking damages from and an injunction against the defendant bank and Mr. Tallamy to stop the sale of certain land located in Summersville, Nicholas County, owned by the Rays and occupied by the Morrises. The Rays and Mor-rises allege that the defendant bank abrogated an agreement by failing to apply funds received as the result of a partial sale of the land, to the debt evidenced by the deed of trust. A hearing on the motion for an injunction was held on 22 January 1990 before Judge Hey. At that hearing Judge Hey also considered the defendants’ motion to dismiss for improper venue. By order dated 26 January 1990, Judge Hey dismissed the suit without prejudice for improper venue.

On 16 February 1990, the Rays and Mor-rises instituted a second suit in Kanawha County that was identical to the first suit except for the addition of “One Valley Bank Corporation, N.A.” as a defendant.¹ A motion to dismiss the second suit for improper venue was again sought. Because of the system of assignment in Kana-wha County, the motion to dismiss was heard by a motion judge, the Honorable Tod Kaufman, on 26 March 1990. Judge Kaufman denied the motion to dismiss as premature and indicated that additional information was needed to determine if the addition of the bank holding company as defendant made venue proper in Kanawha County. On 27 March 1990, the injunction motion was heard by the “priority” judge, Judge Hey. By order dated 28 March 1990, Judge Hey denied the motion for a preliminary injunction and dismissed the action.

The Rays and Morrises argue that venue for both actions is proper in the Circuit Court of Kanawha County, based on the presence in Kanawha County of the defendant corporations. In the first suit, the Rays and Morrises maintain that the defendant bank, a domestic corporation with its principal office in Nicholas County, is “doing business” in Kanawha County. In the second suit, the Rays and Morrises maintain that the new defendant, the bank holding corporation, has its principal office in Charleston and is liable for the acts of its subsidiary, the defendant bank.² Both these arguments fail because the injunction sought in Kanawha County directly affects the title to land located in Nicholas County, and therefore the action must be filed in Nicholas County. Because venue was improper in both suits, we hold that Judge Hey correctly dismissed them and therefore the rule to show cause in prohibition is discharged.³

I

The general venue statute found in W. Va. Code, 56-1-1 [1986], provides in pertinent part:

(a) Any civil action or other proceeding, except where it is otherwise specifically provided, may hereafter be brought in the circuit of any county:

(1) Wherein any of the defendants may reside or the cause of action arose, except that an action of ejectment or unlawful detainer must be brought in the county wherein the land sought to be recovered or some part thereof, is; or

(2) If a corporation be a defendant, wherein its principal office is, or wherein its mayor, president or other chief officer resides; or if its principal office be not in this state, and its mayor, president or other chief officer [does] not reside therein, where it does business; or if it be a corporation organized under the laws of this state, which has its principal office located outside of this state, and which has no office or place of business within the state, the circuit court of the county in which the plaintiff resides or the circuit court of the county in which the seat of state government is located shall have jurisdiction of all actions at law or suits in equity against such corporation, where the cause of action arose in this state or grew out of the rights of stockholders with respect to corporate management; or

(3) If it be to recover land or subject it to a debt, wherein such land or part thereof may be.

These venue provisions must be considered with W.Va. Code, 53-5-3 [1931], which provides:

Jurisdiction of a bill for an injunction to any judgment, act or proceeding shall, unless it be otherwise specially provided, be in the circuit court of the county in which the judgment is rendered, or the act or proceeding is to be done, or is doing, or is apprehended, and the same may be granted to a judgment of a justice in like manner and with like effect as to other judgments.

W. Va. Code, 53-5-4 [1931], creates a limited exception to W. Va. Code, 53-5-3 [1931], by allowing any judge of a circuit court to award an injunction, without consideration of the location of the matter to be enjoined or the residence of the defendants.⁴ W.Va. Code, 53-5-7 [1931], requires that an injunction awarded under the provisions of W. Va. Code, 53-5-4 [1931], be directed to the clerk of court where the case is to be heard, and then that court is to conduct the proceeding as if the order had originated with them.⁵

The relationship among the statutory provisions providing for jurisdiction for injunctions concerning the title of real estate was explained in Syllabus Point 1, Wayland Oil & Gas Co. v. Rummel, 78 W.Va. 196, 88 S.E. 741 (1916):

By section 4, c. 133, Code 1913 (sec. 4950) [W.Va. Code, 53-5-3 [1931]], jurisdiction to award injunctive process is vested exclusively in the circuit court of the county wherein the act or proceeding sought to be enjoined is to be done, or is doing, or is apprehended, notwithstanding some of the defendants may reside in another county, except as provided in sections 6 and 9 of the same chapter (secs. 4952, 4955) [W.Va. Code, 53-5-4, 53-5-7 [1931]], and where a co-ordinate court has jurisdiction on grounds other than the award of such injunction.

See Downs v. Lazzelle, 102 W.Va. 663, 672, 136 S.E. 195, 198 (1926) (“jurisdiction given by said section 4 [W.Va. Code, 53-5-3 [1931]] is exclusive except in those cases mentioned in sections 6 and 9 of that chapter [W.Va. Code, 53-5-4, -7 [1931]]”); Patton v. Eicher, 85 W.Va. 465, 102 S.E. 124 (1920); First National Bank of Webster Springs v. McGraw, 87 W.Va. 74, 104 S.E. 296 (1920); Webber v. Offhaus, 135 W.Va. 138, 62 S.E.2d 690 (1950).

Because only the circuit court of the county where the land is located has jurisdiction to consider a case directly affecting the land, we concluded in Wayland Oil that the denial of the right of other circuits to consider cases affecting title of land not located in their circuit was “within the spirit, if not the express terms, of clause 3, § 1, c. 123, Code (sec. 4734) [W.Va. Code, 56-1-1(a)(3) [1986]], when read in connection with section 4, c. 133 [W. Va. Code, 53-5-3 [1931]].” Id. 78 W.Va. at 202, 88 S.E. at 743; Baird-Gatzmer Corporation v. Henry Clay Coal Mining Co., 131 W.Va. 793, 806, 50 S.E.2d 673, 681 (1948) (“The situs of the land involved determines the venue of such a [cloud-on-title] suit”). In Central Trust Co. v. Feamster, 123 W.Va. 250, 255, 14 S.E.2d 619, 622 (1941), we held:

This Court has uniformly construed this statute [W.Va. Code, 56-1-1] to require the suits regarding the title to real estate to be brought in the county in which the real estate is situated.

Wayland Oil, supra, is factually similar to the present case because both concern an injunction directly affecting land in another county. Wayland Oil sought a writ of prohibition against Rummel, a judge in Kanawha County, who had enjoined Way-land Oil from doing certain acts on land in Lincoln County contrary to the other party’s title. In granting the writ to restrain the further consideration of the suit by the Kanawha County court, we held:

The award of an injunction by the common pleas court of Kanawha county, wherein some of the defendants reside, to enjoin acts and proceedings being committed and prosecuted or threatened in Lincoln county and affecting real estate therein, is coram non judice and void; and prohibition lies to restrain further maintenance or cognizance of the suit.

Syllabus Point 2, Wayland Oil, supra.

The roots of our holding in Wayland Oil can be found in the common law that classified actions as either local or transitory. Actions relating to the title to or the possession of land were considered local, because the cause of action could only arise in one place, the location of the land. The presence of the land or res within the territorial jurisdiction of the court of a county vested the court of that county with in rem jurisdiction. Birch v. Covert, 83 W.Va. 752, 99 S.E. 92 (1919) (County court has the power to appoint a commissioner to convey full legal and equitable title to land located within the county); see generally, 21 C.J.S. Courts §§ 38 to 49 and 84 [1940].

We have long held that only the county court where the land is located has jurisdiction to consider suits that directly affect the land or its title. In Lawrence v. DuBois, 16 W.Va. 443 (1880), we held that a suit to determine whether a deed was also a mortgage could be brought in the county where the grantee resided rather than where the land was located, because the decree would affect the person of the defendant. If the decree or judgment were to affect the land directly, then “the court has no jurisdiction, except where the land lies.” Id. at 456. In Syllabus Point 3, Tennant’s Heirs v. Fretts, 67 W.Va. 569, 68 S.E. 387 (1910), we held:

A suit to remove cloud and quiet title is local in its nature, and the jurisdiction of the court is determined by the situs of the land.

We concluded that the court of the county where the land was situated had jurisdiction, and “[t]he suit could not have been brought in any other county.” Id. at 573, 68 S.E. at 389.

In McConaughey v. Bennett’s Ex’rs, 50 W.Va. 172, 40 S.E. 540 (1901), we held that a suit to recover money for breach of the covenant of warranty does not directly affect the land or its title, and therefore the suit could be brought in a county “wherein any of the defendants may reside.” Id. 50 W.Va. at 179, 40 S.E. at 543. In Life v. Rugged State Development Co., 107 W.Va. 33, 35, 147 S.E. 31, 32 (1929), we refused to require the suit to be brought in the county where the land was located, because this suit, which sought an accounting of oil and gas leases, had “no issue of title to real estate involved.”

However, one case, Rader v. Adamson, 37 W.Va. 582, 16 S.E. 808 (1893), allowed the Jackson County court, where one of the defendants resided, to direct the sale of land located in Roane County. Rader considered only the venue provisions of “Code, c. 123, S. 1 [W.Va. Code, 56-1-1 [1986]]” and did not consider any other statutory provision. Id. 37 W.Va. at 595, 16 S.E. at 812. We have criticized Rader’s construction of the venue provisions as “without due discrimination.” Wayland Oil, supra, 78 W.Va. at 202, 88 S.E. at 744. In Wirgman v. Provident Life & Trust Co., 79 W.Va. 562, 565, 92 S.E. 415, 416 (1917), we again criticized Rader’s holding: “Whether it is well founded, it is not now necessary to say.” The interpretation of the venue provisions adopted in Rader fails to consider the statutory limitations concerning jurisdiction found in W. Va. Code, 53-5-3 [1931], which “evince a legislative intendment to place a limitation upon the scope of the power of such other courts to deal with lands situate in remote counties of the state.” Wayland Oil, supra, 78 W.Va. at 202, 88 S.E. at 743. To the extent Rader indicates that venue for an action directly affecting land or its title may be based on the residence of the defendant rather than the location of the land, it is overruled.

In the present case the Rays and Morris-es seek an injunction from the Circuit Court of Kanawha County to stop the sale of the land located in Nicholas County. However, the Circuit Court of Kanawha County lacks jurisdiction, because under W. Va. Code, 53-5-3 [1931], only the Circuit Court of Nicholas County has jurisdiction to consider this case directly affecting the title to land located in Nicholas County. Venue for the present case is proper in Nicholas County, under W.Va. Code, 56-1-1(a)(3) [1986]. Therefore, Judge Hey’s dismissal of both cases in Kanawha County was proper.

For the foregoing reasons, it is ordered that the rule to show cause in prohibition heretofore issued be and the same hereby is discharged.

Writ Denied.

Justice McHUGH and Justice MILLER.

1 . The record indicates that "One Valley Bank Corporation, N.A." is not a legal entity and the proper name for the corporation that owns the outstanding stock of One Valley Bank of Sum-mersville is One Valley Bancorp of West Virginia.

2 . The Rays and Morrises maintain that Judge Hey’s order prevented them from developing specific details of the relationship and business dealings between the defendant corporations.

3 .Because of our determination that the Circuit Court of Kanawha County properly dismissed the suits, we need not address the alleged procedural problems that concern the Master Calendar system adopted for the Thirteenth Judicial Circuit. The Rays and Morrises specifically question the consideration of the motions to dismiss for improper venue during the preliminary injunction hearings. However, before granting a preliminary injunction, the circuit court must first determine whether venue is proper. Judge Hey determined the venue issue in each case first, obviating any consideration of the preliminary injunctions.

4 . W.Va. Code, 53-5-4 [1931], provides:

Every judge of a circuit court shall have general jurisdiction in awarding injunctions, whether the judgment or proceeding enjoined be in or out of his circuit, or the party against whose proceeding the injunction be asked reside in or out of the same.

5 . W.Va. Code, 53-5-7 [1931], provides:

Every order awarding an injunction by a court or judge other than the court or judge in which or before whom it is to be heard shall be directed to the clerk of the court in which it is to be heard.