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04/21/95 EX PARTE CHRYSLER CORPORATION (IN ARVIS

April 21, 1995

EX PARTE CHRYSLER CORPORATION (IN RE: ARVIS STAMBAUGH AS EXECUTOR OF THE ESTATE OF JEAN JOANN STAMBAUGH, DECEASED, AND ARVIS STAMBAUGH AS THE DEPENDENT WIDOWER OF JEAN JOANN STAMBAUGH, DECEASED
v.
CHRYSLER CORPORATION, ET AL.)



(Barbour Circuit Court, CV-94-065). William H. Robertson, Barbour Circuit Court, TRIAL JUDGE. This Opinion Substituted by the Court for Withdrawn Opinion of February 17, 1995, Previously .

Released for Publication August 28, 1995.

Houston, Maddox, Shores, Ingram, and Cook, JJ., concur.

The opinion of the court was delivered by: Houston

PETITION FOR WRIT OF MANDAMUS

On Rehearing Ex Mero Motu

HOUSTON, JUSTICE.

The opinion of February 17, 1995, is withdrawn, and the following is substituted therefor.

Chrysler Corporation ("Chrysler") and Jerry Mitchell Chevrolet, Inc. ("Jerry Mitchell"), the defendants in a wrongful death case filed by Arvis Stambaugh ("Stambaugh") as executor of the estate of Jean JoAnn Stambaugh and as dependent widower of Jean JoAnn Stambaugh ("the decedent"), filed this petition for a writ of mandamus directing the circuit Judge of Barbour County, Alabama, to transfer the wrongful death case from the Clayton Division to the Eufaula Division of the Circuit Court of Barbour County. The writ is denied.

Acts of Alabama 1878-79, Act No. 106, as amended by Acts of Alabama 1969, Act No. 888 (hereinafter both acts are together referred to as "the Act"), divides Barbour County into two districts, or divisions, for certain purposes. For purposes of this opinion, the geographical area west of a line described in the Act shall be referred to as "the Clayton Division" and the geographical area east of that line shall be referred to as "the Eufaula Division." It is undisputed that the accident that allegedly caused the death of the decedent occurred in the Eufaula Division; that the decedent resided in the Eufaula Division at the time of her death and that her will was admitted to probate in that division; that Stambaugh resides in the Eufaula Division; and that Chrysler does business in the Eufaula Division through a dealership. Neither defendant has a residence in either the Clayton or the Eufaula Division.

A petition for a writ of mandamus is an appropriate means for challenging a trial court's ruling on a motion to transfer, based on a claim of improper venue, when the petitioners allege that they have a clear right to the relief sought. Ala. Code 1975, § 6-3-21; Rule 22(d), Ala.R.Civ.P.; Ex parte Alabama Power Co., 640 So. 2d 921 (Ala. 1994); Elmore County Commission v. Ragona, 540 So. 2d 720 (Ala. 1989); Ex parte Humana, Inc., 462 So. 2d 922 (Ala. 1985). *fn1 The petition for a writ of mandamus is due to be granted if the petitioners make a clear showing of error on the part of the trial court. Ex parte Alabama Power Co., supra.

The Alabama Legislature, in separate acts relating to Barbour, Coffee, and Jefferson Counties, has directed that sessions of the circuit court be held in two different courthouses in each of those counties. The petitioners contend that this Court's interpretation of the act establishing the two courthouses in Jefferson County (see Glenn v. Wilson, 455 So. 2d 2 (Ala. 1984)) and the act establishing the two courthouses in Coffee County (see Ex parte Humana, supra) makes a clear showing that the trial court erred in refusing to transfer the wrongful death action to the Eufaula Division of the Circuit Court of Barbour County.

Glenn v. Wilson, supra, involved the Bessemer Division of Jefferson County. Act No. 362, Acts of Alabama 1935, amending an earlier act, provides in pertinent part:

"Section 2. The said Circuit Court of the Tenth Judicial Circuit, holding at Bessemer, as in this Act provided, shall have, exercise and possess, all of the jurisdiction and the powers which are now or which may hereafter be conferred by law on the several circuit courts of this state, which said jurisdiction and powers shall be exclusive in, limited to, and extend over that portion of the territory of the County of Jefferson, which is described as follows, to-wit: [description omitted], and from and over the above-mentioned and described territory all jurisdiction and powers heretofore or now exercised or existing therein by the Circuit Court of the Tenth Judicial Circuit as now held at Birmingham, is hereby expressly excluded."

In reference to an action filed in the Birmingham Division of the Circuit Court of Jefferson County, which should have been filed in the Bessemer Division, Justice Shores, in Glenn v. ...


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