Page 1

461 So.2d 1315

(Cite as: 461 So.2d 1315)

domestic corporation, in any state or territory in

Supreme Court of Alabama. which it may do business.
Ex parte FIRST ALABAMA BANK OF
MONTGOMERY, N.A., a National Banking [2] Banks and Banking 52 275
Association
(In re BARCLAY INTERNATIONAL, INC., et al.
52 Banks and Banking
v.
     52IV National Banks
FIRST ALABAMA BANK OF MONTGOMERY,
           52k273 Actions by or Against National
N.A., et al.)
Banking Associations
83-1092.
               52k275 k. Jurisdiction and Venue. Most
Cited Cases
Dec. 21, 1984. For venue purposes national banking associations are
domestic corporations in the states in which they are
Corporation, its president, and his wife brought located and foreign corporations in other states.
action against a national bank with its principal place
of business in Alabama, alleging misapplication of
[3] Banks and Banking 52 275
funds and libel. Bank petitioned for a writ of
mandamus to change venue. The Supreme Court,
52 Banks and Banking
Torbert, C.J., held that: (1) the bank was not a foreign
     52IV National Banks
corporation for purposes of venue, and (2) action for
           52k273 Actions by or Against National
libel was properly brought in county where plaintiffs
Banking Associations
received the allegedly libelous matter; thus, plaintiffs'
               52k275 k. Jurisdiction and Venue. Most
other claims were also properly brought there.
Cited Cases
A national bank with its principal place of business in
Writ denied.
Alabama is not a foreign corporation for purposes of
venue. Const. § 232; Code 1975, § 6-3-7.
West Headnotes
[4] Corporations 101 503(1)
[1] Corporations 101 632
101 Corporations
101 Corporations      101XI Corporate Powers and Liabilities
     101XVI Foreign Corporations            101XI(F) Civil Actions
           101k632 k. What Are Foreign Corporations.                101k503 Venue
Most Cited Cases                      101k503(1) k. In General. Most Cited
A corporation created by Congress in the exercise of Cases
its powers as the legislature for the United States is In venue statute providing that all actions against a
not to be regarded as a foreign corporation, but as a domestic corporation for personal injuries must be

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

  Page 2

461 So.2d 1315

(Cite as: 461 So.2d 1315)

commenced in county where plaintiff resides if such      52IV National Banks
corporation does business by agent in the county of            52k273 Actions by or Against National
plaintiff's residence, the phrase “personal injuries” Banking Associations
comprehends mental distress, annoyance,                52k275 k. Jurisdiction and Venue. Most
inconvenience, humiliation, and other manifestations Cited Cases
of disturbed or perturbed feelings. Code 1975, § 6-3- Action for libel against a national bank with its
7. principal place of business in Alabama was properly
brought in county where plaintiffs received the
[5] Corporations 101 503(1) allegedly libelous matter; thus, plaintiffs' other
claims, such as claim for misapplication of funds,
were also properly brought there. Code 1975, § 6-3-
101 Corporations
7; Rules Civ.Proc., Rule 82(c).
     101XI Corporate Powers and Liabilities
*1316 M.R. Nachman, Jr. of Steiner, Crum & Baker,
           101XI(F) Civil Actions
Montgomery, and Ronald Slepian of McDermott,
               101k503 Venue
Slepian, Windom & Reed, Mobile, for petitioners.
                     101k503(1) k. In General. Most Cited
Cases
In statute concerning venue in actions against Charles Partin, Bay Minette, and William W. Watts of
domestic corporations, the term “injury” refers to the Reams, Vollmer, Philips, Killion, Brooks & Schell,
wrongful act or omission, as opposed to the damage. Mobile, for respondents.
Code 1975, § 6-3-7.
TORBERT, Chief Justice.
[6] Corporations 101 503(1)
Petitioner First Alabama Bank of Montgomery
101 Corporations (Bank) seeks a writ of mandamus to compel the trial
     101XI Corporate Powers and Liabilities court to transfer the case from Baldwin to
           101XI(F) Civil Actions Montgomery County.
               101k503 Venue
                     101k503(1) k. In General. Most Cited Barclay International, Inc., (Barclay) and its
Cases president, Joseph Dzwonkowski, and his wife,
Venue is proper at the place of posting or at the place Patricia Dzwonkowski, filed suit against Bank. Bank
of receipt by the addressee in an action for libelous had called upon a letter of credit given to it as further
matter sent through the mail, even if the action is one assurance of the payment on industrial bonds which
against a corporation rather than against an Bank held. The complaint alleges that Bank
individual. Code 1975, § 6-3-7. misapplied the proceeds from the letter of credit,
causing Barclay to be declared in default on the
[7] Banks and Banking 52 275 bonds. Barclay and the individual plaintiffs also
allege that as a result of the false and slanderous
publication of statements by the Bank that plaintiffs
52 Banks and Banking

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

 
461 So.2d 1315
(Cite as: 461 So.2d 1315)
were in default, personal and business interests of the
plaintiffs were injured.
Bank moved to dismiss the action in Baldwin County
for lack of venue. Bank took the position that it was a
foreign corporation and as such it could only be sued
in the county where it was doing business by agent.
The Bank contended that it did not do business by
agent in Baldwin County. After a hearing the trial
court refused to dismiss the action or transfer it to
Montgomery County, where the Bank maintained
venue was proper.
The threshold issue to be resolved is whether Bank, a
corporation organized under the national banking
laws with its principal place of business in Alabama
is a foreign or domestic corporation for the purpose
of determining venue. This is a case of first
impression in Alabama, because venue with respect
to national banks was formerly controlled by federal
statute. 12 U.S.C. § 94 (1945). In 1982, § 94 was
amended so that, except in a few situations
inapplicable in this case, federal law no longer
controls venue. Therefore, we must look to state law
to determine where venue is proper.
Section 232 of the Alabama Constitution of 1901 and
Code 1975, § 6-3-7, establish where venue is proper
with respect to a *1317 foreign corporation. Ex parte
Harrington Manufacturing Company, Inc., 414 So.2d
74 (Ala.1982). Section 6-3-7 also establishes where
venue is proper with respect to a domestic
corporation. There is no statutory definition of
“domestic” or “foreign corporation” for the purposes
of venue.
The legislature has defined the term “foreign
corporation” in other contexts. The Alabama
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
Business Corporation Act, Chapter 2A of Title 10,
defines “foreign corporation” in two different ways.
Section 10-2A-2(2) defines a foreign corporation for
the purposes of Chapter 2A generally as “A
corporation for profit organized under laws other than
the laws of this state....” In Division 1 of Article 8,
Chapter 2A, that part of the foreign corporation
article regulating foreign corporations acting in
fiduciary capacities, the term foreign corporation
means:
“(1) Any bank or other corporation now or
hereafter organized or existing under the laws of
any state of the United States other than the state of
Alabama; and
“(2) Any national banking association having its
principal place of business in any state of the
United States other than the state of Alabama.”
Code 1975, § 10-2A-220. The net result is that in one
context the legislature has decided that this kind of
bank is a foreign corporation and in another context it
has decided that it is not a foreign corporation.
Because we lack clear statutory guidance, we will
examine the nature of corporations organized under
federal law and the policy behind the constitutional
venue provisions.
Before the adoption of the 1975 Code, corporations
organized under national law were not treated as
foreign corporations for the purposes of our business
corporation statutes. Title 10, § 198, 1940 Code (and
as Recomp.1958); 1923 Code, § 7217. Moreover in
Jeffreys v. Federal Land Bank of New Orleans, 238
Ala. 97, 98, 189 So. 557, 558 (1939), the Court,
while relying on our statutes, said that the statute “but
gives expression to the current of judicial thought to
 
461 So.2d 1315
(Cite as: 461 So.2d 1315)
the effect that the United States is not a foreign
sovereignty as regards the several states....”
[1][2] As mentioned in Jeffreys, the settled rule is that
a “corporation created by Congress in the exercise of
its powers as the legislature for the United States ... is
not to be regarded as a foreign corporation, but as a
domestic corporation, in any state or territory in
which it may do business....” 17 W. Fletcher,
Cyclopedia of the Law of Private Corporations, §
8291 p. 12 (perm. ed. 1977). Specifically with regard
to the status of national banking associations, the
general rule is that they “are domestic corporations in
the states in which they are located and foreign
corporations in other states.” Id. at § 8291 p. 15.
Congress, in setting out when diversity jurisdiction
exists with respect to national banks, took a similar
position by stating that national banks were to be
treated as citizens of the state where located. 28
U.S.C. § 1348 (1976).
The policy concerns behind the constitutional
provisions dealing with foreign corporations were
stated in Nelms v. Edinburg American Land
Mortgage Co., 92 Ala. 157, 159, 9 So. 141 (1890): FN1
FN1. While the Court in Nelms was
referring to Article XIV, § 4, of the Alabama
Constitution of 1875, the provisions of § 4
are virtually identical to the first two
sentences of Article XII, § 232, of the
Alabama Constitution of 1901.
“Foreign corporations are essentially non-residents.
Suits against non-residents are sometimes attended
with inconvenience, difficulties and expense, and
judgments rendered are not always absolute.
Service by publication only, may be sufficient to
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
authorize judgment and condemnation, when the
proceedings are in rem, and for all purposes, within
the jurisdiction of the State; but such judgments
rendered in cases where the court did not have
jurisdiction of the person, are not conclusive as
personal judgments beyond the jurisdiction of the
State.”
[3] A national bank with its principal place of
business in Alabama is not, in *1318 essence, a non-
resident. The problems that arise in suing a non-
resident do not arise when one sues a national bank
located in Alabama. FN2 In light of Congress's
determination concerning citizenship of national
banks for jurisdictional purposes and the policy
behind our venue provisions concerning foreign
corporations, we see no reason why Bank should not
be treated as a domestic corporation. Therefore, we
hold that a national bank with its principal place of
business in Alabama is not a foreign corporation for
the purposes of venue.
FN2. One aspect of having limited venue
with respect to national banks, namely not
having the bank's records removed from its
place of business, no longer is deemed valid,
as evidenced by Congress's amendment to
12 U.S.C. § 94. Sen.Rep. No. 9-536, 97th
Cong., 2d Sess., reprinted in 1982 U.S.Code
Cong. & Ad.News 3054, 3082.
A domestic corporation can be sued “in any county in
which it does business by agent at the time the cause
of action arose; provided that all actions against a
domestic corporation for personal injuries must be
commenced in the county where the plaintiff resides
if such corporation does business by agent in the
county of the plaintiff's residence.” Code 1975, § 6-3-
7.
 
461 So.2d 1315
(Cite as: 461 So.2d 1315)
[4] The individual plaintiffs contend that they were
defamed in a letter sent by Bank to the Industrial
Development Board in Baldwin County. The phrase
“personal injury” comprehends mental distress,
annoyance, inconvenience, humiliation, and other
manifestations of disturbed or perturbed feelings.
Hatcher v. Southern Railway Co., 191 Ala. 634, 68
So. 55 (1916). The inquiry in this case is where this
“injury” took place.
[5] The term “injury” in the venue statute has been
determined to refer to the wrongful act or omission,
as opposed to the damage. Age-Herald Publishing
Co. v. Huddleston, 207 Ala. 40, 92 So. 193 (1921). In
coming to this conclusion, this Court said:
“The meaning we accord to ‘injury’ in section
6112 [Code 1907] is made clearer by a
consideration of 6110, which is a general venue
statute, and which authorizes the bringing of non-
contractual personal actions either in the county of
the defendant's residence, ‘or in the county in
which the act or omission complained of may have
been done, or may have occurred.’ Certainly, in
enacting the later section (6112), the Legislature
did not intend to change the basis of venue in tort
actions from the county in which the wrongful act
was done or occurred to the county, or any county,
in which the resulting damage occurred, and to
thereby effect so vital a change in actions only
against corporate defendants, and for personal
injuries only.”
Id., 207 Ala. at 44, 92 So. at 197.
The Court concluded that “in an action for libel
against a newspaper the injury-the breach of duty-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
occurs, within the meaning and application of the
venue statute, at the place where the newspaper is
primarily published, and not in other places where it
is secondarily published, that is merely recirculated.”
Id., 207 Ala. at 45, 92 So. at 198.
[6][7] Fourteen months after Age-Herald was
decided, this Court held that venue was proper “at the
place of posting or at the place of receipt by the
addressee” in an action for libelous matter sent
through the mail. Kenney v. Gurley, 208 Ala. 623,
625, 95 So. 34, 36 (1923). See also, Weir v.
Brotherhood of Railroad Trainmen, 221 Ala. 494, 129
So. 267 (1930). While Kenney was decided under the
statute concerning venue in suits against individuals
and Age-Herald was decided under the statute
concerning venue in suits against corporations, the
focus under both statutes is on the question of where
the wrongful act or omission occurs. Therefore, we
find that the Kenney holding is controlling. The
action for libel was properly brought in Baldwin
County, where the letter was received. Because the
libel action was properly brought in Baldwin County,
the other claims are also properly brought there.
A.R.Civ.P. 82(c).
*1319 Therefore, we deny the writ of mandamus.
WRIT DENIED.
JONES, SHORES, BEATTY and ADAMS, JJ.,
concur.
Ala.,1984.
Ex parte First Alabama Bank of Montgomery, N.A.
461 So.2d 1315
END OF DOCUMENT
 Date of Printing: Aug 21, 2010

KEYCITE

Ex parte First Alabama Bank of Montgomery, N.A., 461 So.2d 1315 (Ala.,Dec 21, 1984) (NO. 83-1092)
History

Direct History

=> 1 Ex parte First Alabama Bank of Montgomery, N.A., 461 So.2d 1315 (Ala. Dec 21, 1984) (NO.
83-1092)

Related References
2 Barclay Intern., Inc. v. First Alabama Bank of Montgomery, N.A., 557 So.2d 1201 (Ala. Nov 22,
1989) (NO. 87-1258)

© 2010 Thomson Reuters. All rights reserved.

 Date of Printing: Aug 21, 2010

KEYCITE

Ex parte First Alabama Bank of Montgomery, N.A., 461 So.2d 1315 (Ala., Dec 21, 1984) (NO. 83-1092)

© 2010 Thomson Reuters. All rights reserved.

 Date of Printing: Aug 21, 2010

KEYCITE

Ex parte First Alabama Bank of Montgomery, N.A., 461 So.2d 1315 (Ala. Dec 21, 1984) (NO. 83-1092)
Citing References

Positive Cases (U.S.A.)

   Cited
1 Ex parte Pikeville Country Club, 844 So.2d 1186, 1188 (Ala. Sep 13, 2002) (NO. 1011244) HN: 4
(So.2d)
2 Ex parte Graham, 634 So.2d 994, 995+ (Ala. Jul 30, 1993) (NO. 1920483) HN: 4 (So.2d)
3 Ex parte SouthTrust Bank of Tuscaloosa County, N.A., 619 So.2d 1356, 1357, 42 A.L.R.5th 825, 825
(Ala. Apr 16, 1993) (NO. 1920405) HN: 4 (So.2d)
4 Kilduff v. Adams, Inc., 593 A.2d 478, 490, 219 Conn. 314, 337, 11 A.L.R.5th 957, 957 (Conn. Jun
18, 1991) (NO. 14182) HN: 4 (So.2d)
5 Oliver v. Blue Cross & Blue Shield, 1992 WL 139385, *3, 6 Conn. L. Rptr. 541, 541 (Conn.Super.
Jun 04, 1992) (NO. 055630) HN: 4 (So.2d)
6 Sunwest Bank of Albuquerque, New Mexico v. Nelson, 958 P.2d 740, 743+, 125 N.M. 170, 173+,
1998-NMSC-012, 012+ (N.M. Apr 21, 1998) (NO. 24,802) " HN: 2,3,7 (So.2d)

   Mentioned
7 International Ins. Co. v. Guaranty Nat. Ins. Co., 780 F.Supp. 546, 552 (N.D.Ill. Nov 26, 1991) (NO.
89 C 8011, 90 C 1264) HN: 4 (So.2d)

Administrative Guidelines and Bulletins (U.S.A.)

Office of the Comptroller of the Currency Materials

8 1985 WL 151327 (O.C.C.), *5 (1985)

Secondary Sources (U.S.A.)

9 What amounts to a personal injury within venue statute, 134 A.L.R. 751 (1941)
10 National bank as subject to suit outside county of its residence, 86 A.L.R. 47 (1933)
11 Citizenship, domicil, residence, or location of national corporation, 69 A.L.R. 1346 (1930)

© 2010 Thomson Reuters. All rights reserved.

 12 Alabama Corporation Law with Forms s 18:1, Recognition of foreign corporations: Certificate of
authority (2010) HN: 1 (So.2d)
13 Alabama Rules of Civil Procedure Annotated RULE 82, Jurisdiction and Venue (2010) HN: 4,6,7
(So.2d)
14 Fletcher Cyclopedia Law of Private Corporations s 4357.50, Statutory provisions--National banks
(2010) HN: 2 (So.2d)
15 Fletcher Cyclopedia Law of Private Corporations s 8291, Corporations created by Congress--In
general (2010) HN: 1 (So.2d)
16 Am. Jur. 2d Foreign Corporations s 5, Corporations organized under laws of United States; District
of Columbia (2010) HN: 1 (So.2d)
17 CJS Banks and Banking s 594, Generally (2010) HN: 3 (So.2d)
18 CJS Corporations s 800, Venue--Place where cause of action arose (2010) HN: 6 (So.2d)
19 CJS Corporations s 968, Definition (2010) HN: 1,2 (So.2d)
20 CLEARING THE AIR ON THE MEANING OF "PERSONAL INJURY" FOR CORPORATE
VENUE PURPOSES: EX PARTE GRAHAM, 46 Ala. L. Rev. 713, 723 (1995)

Court Documents

Trial Court Documents (U.S.A.)

Trial Pleadings
21 ""We the People"" ex rel., the Citizen(s), Lewis RUDOLPH; Morgan., and Donna Thomas; Morgan.,
and Estate (if applicable) Injured and Proper Party(s), v. Pamela F. PAYNE; Pamela F. Payne Esq.;
Pamela F. Payne Judge; Rebecca M. Baker; Rebecca M. Baker Esq.; Rebecca M. Baked Judge; Larry
M. Kristianson; Larry M. Kristianson Esq.; Larry M. Kristianson Judge; Lewis M. Schrawyer Lewis
M. Schrawyer Esq.; Lewis M. Schrawyer Deputy District Attorney for D.B.A. Stevens County;,
2001 WL 34739176, *34739176 (Trial Pleading) (E.D.Wash. Feb 28, 2001) Complaint:
Deprivation of Life, Liberty, and the Pursuit of Happiness (NO. CS-00-0399-EFS)

Trial Motions, Memoranda and Affidavits

22 Nathan H. CALVIN, Plaintiff, v. CHELTON FLIGHT SYSTEMS, INC., f/k/a Sierra Flight Systems,
Inc. a Delaware corporation, Chelton Avionics, Inc., a Delaware corporation, Cobham plc, a foreign
corporation, and John does I through X, Defendants., 2005 WL 4907413, *4907413 (Trial Motion,
Memorandum and Affidavit) (Idaho Dist. Jun 29, 2005) Memorandum in Support of Defendants'
Motion for New Trial or, in the Alternative for Judgment Notwith-Standing, the Verdict, New,
Trial or Remittitur Regarding Plaintiff's Emotional Distress Claim (NO. CVOC0307492D)

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