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Rowan v. GE Capital Mortgage Services5/26/2000
actions therein ...." (Emphasis added.)
Therefore, whether § 35-10-30(b) is jurisdictional, as this Court held a similar provision was in United Supply Co. v. Hinton, 396 So. 2d 1047 (Ala. 1981), or prescribes proper venue, as I tend to believe, it is mandatory ("shall be brought"), and this Court has -- and has had -- no power to change this by rule. JOHNSTONE, Justice (dissenting).
Section 35-10-30(b), Ala. Code 1975, providing that " ll actions for the recovery of the [statutory penalty] shall be brought in the county where such mortgage or other instrument is recorded," is NOT part of the substantive right to bring an action to recover the statutory penalty. Rather, § 35-10-30(b) is a mere Johnny-come-lately venue provision adopted by the Legislature some 70 years after the Legislature originally created the right of action to recover the statutory penalty now codified in § 35-10-30(a).
The right of action first appeared in § 1343 and § 1344 of the Alabama Code of 1852:
"§ 1343. Any mortgagee who has received satisfaction of the amount secured by such mortgage, must, if the same has been recorded, at the request of the mortgagor, enter satisfaction upon the margin of the record thereof, which operates as a release to such mortgage, and a bar to all actions thereon.
"§ 1344. Any mortgagee who fails, either in person or by attorney, for three months, after such payment and request, to make such entry, forfeits to the party aggrieved two hundred dollars."
No specification of where such an action should be filed accompanied these 1852 Code sections. Rather, such a specification did not appear until the adoption of the Code of 1923, where the specification appears as a mere venue provision accompanying the current version of the wording of the right of action. Section 9024 of the 1923 Code, which is identical to the current § 35-10-30(a), and § 9028 of the 1923 Code, which is identical to the current § 35-10-30(b), read:
"9024. (4898) (1066) (1869) (2222, 2223) (1613, 1614) (1343, 1344) Penalty for failure to enter satisfaction. -- If, for thirty days after such request, the mortgagee or assignee or transferee, trustee or cestui que trust, fails to make such entry, he forfeits to the party making the request two hundred dollars unless there is pending, or there is instituted, a suit within that time, in which the fact of payment or satisfaction is or may be contested. In construing this section, the right of action given herein shall be considered as a personal right, and shall not be lost or waived by a sale of the property covered by the mortgage or deed of trust before a demand was made for the satisfaction to be entered upon the record."
"9028. Venue of suits for penalties under this article. -- All suits for the recovery of the penalties mentioned in this article shall be brought in the county where such mortgage or other instrument is recorded."
Because the specification of the place for filing an action for the statutory penalty is a mere venue provision, it does not restrict a statewide class action for recovery of these statutory penalties; and Rule 82(c), Ala. R. Civ. P., allows venue in any county, such as the forum county in the case before us, where venue is proper for any of the claims for the statutory penalty.
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