Ivey v. Dean

Mr. Justice CresoN delivered the opinion of the Court. The parties will be herein referred to as they appeared in the trial court; that is, petitioner D arrene Dale Ivey as defendant, and respondents Carolyn Dean and J. R. Dean as plaintiffs. Plaintiffs Carolyn Dean and J. R. Dean filed separate declarations in the Circuit Court of Hamilton County, Tennessee. These declarations sought recovery for injuries and/or damages sustained by them as a result of an automobile accident involving the defendant Darrene Dale Ivey, which occurred in Catoosa County, Georgia. The defendant filed pleas in abatement in response to both declarations, challenging the jurisdiction of the Hamilton County Circuit Court. These pleas disclosed that the plaintiffs were both residents of Walker County, Georgia, and that the defendant was likewise a resident of Walker County, Georgia. The contention made was that venue and jurisdiction was lacking in Hamilton County, Tennessee, under the provisions of T.C.A. sec. 20-401. It should be noted at this point that personal service was had upon the defendant in Hamilton County, [410] Tennessee. Plaintiffs then filed motions to dismiss the defendant’s pleas in abatement. Orders were then entered by the trial court, overruling defendant’s pleas in abatement. Amendments were made to the orders, noting that the pleas in abatement were heard without contest as to the facts contained therein, as if demurrers had been filed. The defendant then petitioned this Court for writ of certiorari, under T.C.A. sec. 27-801. The only question before this Court is whether or not T.C.A. sec. 20-401, which reads as follows: “Transitory actions.- — -In all transitory actions, the right of action follows the person of the defendant, unless otherwise expressly provided. If the plaintiff and defendant both reside in the same county, such action shall be brought in the county of their residence. (Code 1858, secs. 2808, 2809 (deriv. Acts 1809 (Sept.), ch. 126, sec. 3); Shan., secs. 4513, 4514; Code 1932, secs. 8640, 8641.)” proscribes the institution of an action in this state when both the plaintiff and defendant reside in the same county in another state. The history of T.C.A. sec. 20-401 may be summarized as follows: Chapter 126, Section 3 of the Acts of 1809, represents the original enactment of the first sentence of the aforementioned Code section. It reads as follows: “Be it enacted that in all criminal cases the trial shall be had in the county in which the offense may have been committed; in actions touching the freehold, the trial shall be had in the county in which the freehold may be situated; and in all transitory actions the right [411] of action shall follow the person of the defendant, subject in every instance to a change of venue according to the provisions of the Act to which this is a supplement.” The second sentence of T.C.A. sec. 20-401 is derived from Chapter 60, Section 2 and the Acts of 1849-1850. That original enactment read as follows: “That from and after the passage of this Act, any defendant or defendants may file a plea in abatement to any suit instituted against him or them in any of the courts of law in this state, when the plaintiff or plaintiffs reside in the same county with said defendant or defendants, when said suit may be instituted in any other county, except their place of residence; provided, this Act shall not apply so as to effect any rights or remedies in force against absconding debtors, under the attachment laws in force in this state.” These two sections were codified as Sections 2808 and 2809 of the Code of 1858, and appear therein as follows: “2808. In all transitory actions, the right of action follows the person of the defendant, unless otherwise expressly provided.” “2809. If the plaintiff and defendant both reside in the same county in this State, such action shall be brought in the county of their residence. ’ ’ These two sections were again codified in Shannon’s Code at Sections 4513 and 4514, and the language was the same as above quoted. Chapter 126, Section 3 of the Acts of 1809, quoted above, was cited as the origin of the Code sections. In the Code of 1932, these sections appeared as Sections 8640 and 8641. The same language [412] was used, except that in the second section, 8641, the words 4‘in this state” were elided. In the present Tén-nes.see Códe Annotated, adopted in 1956, the two sections are combined and the words “in this state” again do not appear. That this section, as previously construed by this Court, has a proscriptive implication is undeniable. It says, “If the plaintiff and defendant both reside in the same county, such action shall be brought in the county of their residence.” No distinction is made between citizens of. counties of this state and citizens of counties of another state.. The reason for the Legislature’s enactment of this rule has often been stated as follows: “And thus interpreted it is a just rule, for it would be most unjust to permit the plaintiff in a simple action of debt or other such action, although the venue may be wherever the defendant may be found, to catch his neighbor away from home, and the home of his witness, and surprise him with a suit, which, however able he may be to resist at home, he is wholly unable to do so among strangers. Such oppressive use of this would be of the process of courts is prevented by Section 8641, and it is believed this was all it was intended to do.” Tims v. Carter (1951) 192 Tenn. 386, 241 S.W.2d 501. We know of no reason, constitutional or otherwise, why .this state cannot deny access to certain of its courts to residents of other states who reside in the same county in- those states under the same circumstances that this state.denies access to such courts by residents -of this state who reside in the same county in this state. . . [413] The.reason for which this section was enacted is equally applicable whether the plaintiff and defendant are citizens of the same county in this state or citizens of the samé county in another state. The orders of the trial judge overruling defendant’s pleas in abatement are reversed, the pleas sustained and the suits dismissed. The costs are assessed against the respondents, equally. Burhett, Chief Justice, and Dyer and ChattiN, Justices, concur. HarbisoN, Special Justice, dissents.