Massengill v. Superior Court

In Massengill v. Superior Court, 3 Ariz. App. 588, 416 P.2d 1009 (1966), the Court discussed an analogous situation of competing venue exceptions. In Massengill, a plaintiff was involved in an automobile accident in Yuma County. The plaintiff sued all the defendants in Maricopa County, including Yuma County and the sheriff and deputy sheriff of Yuma County. The Yuma County defendants moved for a change of venue to Yuma County based on 12-401(15) and (16), which provide that counties and county officials "shall" be sued in their own county. But, because one of the individual defendants was served in Maricopa County, the plaintiff argued that venue was proper in Maricopa County under the trespass exception. The trial court granted the motion to change venue to Yuma County, and this court affirmed, holding: It is our opinion that where there are several alternative counties under which the "may" exception of the venue statute could be applicable, the plaintiff is in a position to exercise his option as to the proper county. . . . It is further our opinion that as between a "may" exception and a "shall" exception, the latter has the preference notwithstanding the broad language contained in Subsection 10. Massengill, 3 Ariz. App. at 591, 416 P.2d at 1012.