Smith ex rel. Hartfield v. Clark

Lacy, Judge, delivered the opinion of the court: This is an action of debt brought by the plaintiff in error against the defendant, in the Sevier Circuit Court, on a judgment rendered in favor of James Smith, against James Clar/c, in the Hempstead Circuit Court. The defendant filed a demurrer to the plaintiff’s declaration, which was sustained by the court below; and this writ of error is sued out to reverse that judgment. There is but one point in the case, and that is, was the venue well laid in the plaintiff’s declaration? In all cases, the venue is either local or transitory, and if it is laid improperly it furnishes good ground for a demurrer, or may be taken advantage of on the trial upon the general issue, by way of nonsuit. See 1 Chitty's Pl. 241; 1 Wils. 165; Cowper, 410; 1 Tidd, 367. . Where the cause of action could only have arisen in a particular county, the venue is local, and could only be laid in that county. Such are all real and mixed actions, as the actions of ejectment and quave clausum fregit. In general, where the cause of action is founded upon contract, or where the injuries affect personal rights or personal property, the venue is transitory, and may be laid in any county they may select: such as actions of assault and battery, false imprisonment, libel, or actions on the case, or trespass for damages to personal property. The authorities are conclusive upon the point that jn action of debt, or in scire facias on a recognizance of bail by bill, and in action of debt on a judgment of record, the venue is local, and must be laid in the county whére the reeord is. The reason assigned is, that the judgment constitutes a new contract between the parties, and the plaintiff must count upon the record, by which it will appear that the cause of action arose in the county where the judgment was obtained. See 2 Salk. 564; 7th Mod. 120; Barnes vs. Kenyon, 2 Johnson’s Cases, 381. In the case now under consideration, the judgment recovered by Smith against Clark, in the Hempstead Circuit Court, formed a new contract, and as that judgment could not be brought up to the Sevier Circuit Court, the venue must be local, and the demurrer rightly sustained. The judgment below must therefore be affirmed, with costs,