CHAPMAN v. PHILLIPS

CHAPMAN v. PHILLIPS
1955 OK 49
280 P.2d 726
Case Number: 36539
Decided: 03/01/1955
Supreme Court of Oklahoma

FRED A. CHAPMAN, PETITIONER,

v.

HOWARD PHILLIPS, JUDGE OF THE DISTRICT COURT OF McCURTAIN COUNTY, OKLAHOMA, RESPONDENT.

Syllabus

¶0 Where a plaintiff brought an action in the District Court of McCurtain County, Oklahoma, to perpetually enjoin the defendant therein from prosecuting a Texas action and from bringing future actions against him and/or a party to whom said plaintiff had allegedly sold timber from land he purported to own; Held: Said McCurtain County action was transitory rather than local, and its venue is governed by sec. 139,

[280 P.2d 726]

Original action instituted by plaintiff in this court for a writ of prohibition to prevent the defendant Judge from trying an injunction action instituted by one E.H. King in the District Court of McCurtain County, Oklahoma. Writ granted.

John Poindexter, Ardmore, and Tom Finney, Idabel, for petitioner.

Geo. T. Arnett and Ed R. LeForce, Idabel, for respondent.

BLACKBIRD, J.

¶1 This is an original proceeding for a writ of prohibition to prevent the respondent District Judge or Court from trying Cause No. 14421, filed in said Court by one E.H. King, as plaintiff, and now pending there, against the applicant or plaintiff herein. The applicant and said District Judge will hereinafter be referred to as petitioner and respondent, respectively.

¶2 Some of the facts which constitute the background of the present controversy (as alleged in the pleadings herein) are substantially as follows: Petitioner and one, T.C. Butts, a resident of Red River County, Texas, which is directly across the Red River from McCurtain County, Oklahoma, are plaintiff and defendant respectively in an action brought by petitioner in the District Court of that Texas county, to enjoin the said Butts from trespassing upon, or removing timber from, certain land [280 P.2d 727] petitioner claims to own in said county, and for damages on account of Butts' alleged trespassing upon said land and removal of said timber. Apparently the land on which the timber has grown was on the Oklahoma side of said river until a recent change in the river's course placed it on the Texas side. King, who sold and assigned the timber to Butts, claims to have been the owner of the land before the river changed its course when there was no question about its being in McCurtain County, Oklahoma, and he still claims to be the land's owner despite the shift in the course of the river.

¶3 The above substantially described the way matters stood when King instituted the aforesaid cause, No. 14421, in Oklahoma's McCurtain County District Court, to permanently enjoin Chapman, the petitioner herein, from further prosecuting the Red River County, Texas, suit against Butts, and from bringing any other suit in any court in Texas, or anywhere else, against either Butts or King affecting said land or seeking damages against either their trespassing thereon or removing timber therefrom. Chapman, a resident thereof, was served in Carter County, Oklahoma, by a summons issued in the McCurtain County action. Thereafter, in said Cause No. 14421, he challenged the jurisdiction of the court over his person by a proper pleading filed therein on the theory that the court had no such jurisdiction because the cause of action alleged against him therein is a personal and transitory one whose venue is properly in the county of his residence, rather than in McCurtain County. When the respondent District Judge overruled his said plea to the jurisdiction of said court and ordered him to plead to King's petition, Chapman filed the present proceeding in this court.

¶4 The controlling question herein is the same as the one petitioner raised in the McCurtain County action, namely: Was said action a local or transitory one? The first section (Sec. 131) of our statutes with reference to the venue of actions, Tit.

¶5 In support of his position respondent cites Sinclair Prairie Oil Co. v. District Ct. of Oklahoma County, 180 Okl. 455,

¶6 Accordingly, the writ is granted.

¶7 WILLIAMS, V.C.J., and CORN, ARNOLD, HALLEY and JACKSON, JJ., concur.