
    Ex parte GRIMMER REALTY COMPANY. (In re James PASSMORE and Passmore Construction Company v. GRIMMER REALTY COMPANY, a corporation, and Bill Ingram, an individual).
    88-920.
    Supreme Court of Alabama.
    Sept. 22, 1989.
    
      Douglas Corretti and Jesse P. Evans III of Corretti & Newsom, Birmingham, for petitioner.
    Jake V. Bivona of Green, Armstrong & Bivona, Bessemer, for respondent.
   JONES, Justice.

We review this question: Where the plaintiff’s “Verified Statement Of Lien” was appropriately filed in the Birmingham Division of Jefferson County (the situs of the real estate), did the trial court err in transferring the plaintiff’s subsequently filed suit to enforce the lien from the Bessemer Division to the Birmingham Division of the circuit court?

Under the authority of United Supply Co. v. Hinton Construction & Development, Inc., 396 So.2d 1047 (Ala.1981); and Glenn v. Wilson, 455 So.2d 2 (Ala.1984), an in rem proceeding to enforce a lien on real estate for an equitable partition of real estate or a sale of real estate for division of the proceeds can not be maintained in a county other than where the subject real estate is located. We agree with the respondent that the specific holding in neither United Supply nor Glenn speaks directly to the question of transfer of the cause filed in the wrong county, where the notice of lien was previously filed in the right county. Clark v. Smith, 191 Ala. 166, 67 So. 1000 (1915). Nonetheless, we now hold that, because of the nature of such in rem proceedings, the transfer of the eause after the lapse of the six-month statutory period (Ala. Code 1975, § 35-11-221) does not operate to revive the suit as one to enforce a lien.

Both the filing of the notice of a lien and the filing of suit to enforce the lien, for obvious title-search reasons, must be timely filed in the county where the real property lies. Where, as here, the suit to enforce the lien was filed in the wrong county (Bessemer Division of Jefferson County) within the six-month statutory period, but the cause was transferred to the right county (Birmingham Division of Jefferson County) after the expiration of the six-month period, the transferred cause loses its in rem character and survives the transfer merely as an in personam proceeding. On the condition that the transferred cause is an in personam proceeding for breach of contract or a suit on a debt, the petition for writ of mandamus is denied.

WRIT DENIED CONDITIONALLY.

ALMON, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ„ concur.

HORNSBY, C.J., concurs specially.

HORNSBY, Chief Justice

(concurring specially).

I specially concur to clarify an inconsistency in Glenn v. Wilson, 455 So.2d 2 (Ala.1984). At one point, Glenn says that “it would have been appropriate for the court in the Birmingham Division to transfer the case to the Bessemer Division, in accordance with § 12-11-11, Code 1975.” Id. at 4. At a later point, when discussing with approval the holding of Clark v. Smith, 191 Ala. 166, 67 So. 1000 (1915), and Unit ed Supply Co. v. Hinton Construction & Development, Inc., 396 So.2d 1047 (Ala.1981), the opinion says that cases such as Clark and United Supply are not subject to transfer. The first statement is correct. While a case involving land can be tried only in the division in which the land lies, because that is the only place where the court will have jurisdiction to hear the case, under the statute another court within the county can transfer the case to the proper court. An action to enforce a lien can continue, assuming that the transfer is accomplished within the time limits for initiating such an action within the proper division.

Restrictions on the transfer of cases typically occur because the transferring court does not have the authority to transfer the case to a court of another sovereign. For example, see the difference in treatment of cases where a claim is raised that the case should be tried elsewhere for the convenience of the parties where the transferee court is out of the state and those cases where the transferee court is not out of the state. Under Code 1975, § 6-5-430, if the cause of action arose outside the state, the court dismisses the case so that it can be refiled in the more appropriate out-of-state forum. Under Code 1975, § 6-3-21.1, intrastate transfer of the case is authorized.  