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Hodge v. Steinwinder2/4/2005
p. 2000). In Ragona, a case decided seven years after Tanksley, the supreme court, overruling prior cases to the contrary, held that an aggrieved party is not limited to filing a petition for the writ of mandamus to the transferor court, but may raise the issue of improper venue on appeal from a final judgment on the merits. In so holding, the court, quoting from 2 Champ Lyons, Alabama Rules of Civil Procedure Annotated ยง 82.4 (2d ed. 1986), explained that although the "'denial of a motion for change of venue is not reviewable on an appeal from a final judgment[,] n erroneous transfer of venue, a different concept, should be available on appeal from the final judgment.'" Ragona, 540 So. 2d at 724.
We conclude that the venue issue is properly before us and that the father is correct that the Coffee Circuit Court erred by transferring this proceeding to the Montgomery Circuit Court. The judgment of the Montgomery Circuit Court is therefore vacated, and the cause is remanded to that court with instructions that it transfer the case to the Coffee Circuit Court for further proceedings.
The mother's motion to strike and seal a portion of the father's brief is denied.
JUDGMENT VACATED AND CAUSE REMANDED.
Pittman and Bryan, JJ., concur.
Murdock, J., concurs in part and concurs in the result, with writing.
Thompson, J., concurs in the result, without writing.
MURDOCK, Judge, concurring in part and concurring in the result.
I concur in the main opinion insofar as it relates to the finality of the trial court's August 11, 2004, order; otherwise, I concur in the result.
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