Setser v. Swindle

541 So. 2d 1097, 1989 Ala. LEXIS 138, 1989 WL 35160

• Court: Supreme Court of Alabama
• Decided: March 24, 1989
• Docket: 88-9
• Status: Published

Opinions

STEAGALL, Justice.

Plaintiffs Harry and Yoshiko Setser seek a writ of mandamus directed to the Honorable Samuel H. Monk, Circuit Judge, Calhoun County, Alabama, compelling him to set aside his order granting the motion of defendants Etowah County and the City of Glencoe to transfer the Setsers’ negligence suit from Calhoun County to Etowah County. That order was based upon Ala.Code 1975, § 6-3-11, which requires that a civil action against a county or a municipality for damages based on personal injury, death, or property damage be filed either in the county sued or in the county where the municipality sued is located, or in the county where the act or omission complained of occurred.

Because the original defendant, Setsuko Swindle, is a resident of Calhoun County, the case was properly filed in Calhoun County; Etowah County and the City of Glencoe were subsequently added. Rule -82(b)(1)(A) and (c), A.R.CÍV.P. Therefore, notwithstanding § 6-3-11, the trial court’s order is due to be reversed. See Ex parte City of Huntsville, 541 So.2d 1094 (Ala.1989), decided this date. See, also, Elmore County Commission v. Ragona, 540 So.2d 720 (Ala.1989), and Ex parte Shelby County, 516 So.2d 525 (Ala.1987).

The petition for writ of mandamus is granted and the trial court is directed to set aside its order transferring the case to Etowah County.

WRIT GRANTED.

HORNSBY, C.J., and JONES, ADAMS and KENNEDY, JJ., concur. MADDOX, ALMON, SHORES and HOUSTON, JJ., dissent.