CITY OF McALESTER v. FOGG

CITY OF McALESTER v. FOGG
1956 OK 334
312 P.2d 867
Case Number: 37428
Decided: 12/18/1956
Supreme Court of Oklahoma

THE CITY OF McALESTER, OKLAHOMA, A MUNICIPAL CORPORATION, PLAINTIFF,
v.
THE HONORABLE WILLIAM L. FOGG, JUDGE OF THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT, OKLAHOMA, DEFENDANT.

Syllabus by the Court.

¶0 1. A municipal corporation is 'a corporation created by the laws of this state' as that phrase is used in

Original proceeding in this court by the plaintiff, City of McAlester, Oklahoma, a municipal corporation, for a writ prohibiting the defendant William L. Fogg, judge of the District Court of the Seventh Judicial District, Oklahoma, from proceeding further because of lack of jurisdiction in an action wherein said municipality was one of the parties defendant. Writ granted.

Arnote, Arnote & Bratton, McAlester, for plaintiff.

Brown, Darrough & Darrough, Oklahoma City, for defendant.

DAVISON, Justice.

¶1 This is an original proceeding in this court wherein the plaintiff, City of McAlester, Oklahoma, a municipal corporation seeks to prohibit the defendant, William L. Fogg, Judge of the District Court of Oklahoma County, from proceeding further in an action brought in said court by R.A. Lester, as plaintiff, against the defendants, Oklahoma Transportation Company, a corporation, City of McAlester, a municipal corporation and Ben J. Kerr, because the venue of said action did not lie in said county.

¶2 The primary action in the District Court of Oklahoma County, was brought for the recovery of damages for personal injuries suffered by said R.A. Lester in Pittsburg County, Oklahoma, wherein the City of McAlester is situated. The defendants were the Oklahoma Transportation Company, a corporation, owner of a motor bus transportation system, Ben J. Kerr, the bus driver, and the City of McAlester, a municipal corporation, on whose streets the accident occurred. The bus company's lines ran through Oklahoma County and its principal offices were located in said county and it was there, properly, served with summons. The individual defendant was not served. The municipality was served in Pittsburg County, the county of its situs. The petition alleged that the defendants were jointly liable. The plaintiff herein filed a motion in the primary action attacking the jurisdiction of the Oklahoma County District Court on the ground that, since the cause of action arose in Pittsburg County, the county wherein said city was situated and had all its offices and wherein all its principal offices resided, the venue of said action was in Pittsburg County. When the motion was overruled, the present case was filed.

¶3 The sole question we are called upon to determine is the venue of the action for damages. In this state, venue of actions is fixed by statute,

¶4 Section 131 fixes the venue of actions, the subject matter of which is real estate.

¶5 Section 132 fixes the venue of actions, the subject matter of which is real estate lying in two or more counties.

¶6 Section 133 fixes the venue of actions, the subject matter of which either is a statutory fine, forfeiture or penalty or is an official act of omission or commission of a public officer or is on the official bond of a public officer.

¶7 Section 134 provides:

"An action, other than one of those mentioned in
first three sections of this article, against a
corporation created by the laws of this state, may be
brought in the county in which it is situated, or has
its principal office or place of business, or in
which any of the principal officers thereof may
reside, or be summoned, or in the county where the
cause of action or some part thereof arose."

¶8 Section 135 provides:

 
"Actions may be commenced against any
transportation or transmission company in the county
where any person resides upon whom service of summons
is authorized to be made, irrespective of the order
in which such persons are named in this chapter, and
irrespective of the residence of any superior officer
or authorized person upon whom service of summons may
be had; or in the county where the cause of action,
or some part thereof may have accrued; or, in any
county through which or into which the lines of road
or any part of the structure of such company may be,
or passes; and the plaintiff may elect in which
county he will bring the action."

 
¶9 Section 136 fixes the venue of actions against turnpike companies.

¶10 Section 137 fixes the venue of actions against foreign corporations and non-residents.

¶11 Section 138 fixes the venue of actions for divorce.

¶12 Section 139 provides:

"Every other action must be brought in the county
in which the defendant or someone of the defendants
resides or may be summoned."

¶13 It is the contention of plaintiff that, since it is a corporation within the contemplation of section 134, above quoted, the venue of any action and particularly the one being attacked is laid in Pittsburg County, where it is situated and where the cause of action arose. With this contention, we agree. In the case of Oklahoma City v. District Court, 168 Okl. 235, 32 P.2d 318, 93 A.L.R. 489, it was held that said statute,

¶14 It will be noted that, as to a domestic corporate defendant, the venue of an action is fixed by section 134 and that section 139 can have no application as regards the municipality for the reason that the latter statute applies only to "every other action", meaning other than as provided for by sections 131-138 inc. A very similar situation was before the Kentucky Court in the case of Crume v. Taylor, 272 Ky. 585, 114 S.W.2d 1119. In that State, the venue of an action for personal or property injury lies in the county where "`the defendant resides or in which the injury is done.'" Very similar to our section 134 relative to domestic corporations. Another section of the Kentucky law provided for other actions, much the same as our section 139 does. In the Kentucky case, the plaintiff sued two individual defendants residing in different counties for personal injuries. The action arose in one of said counties and suit was brought in the other. The non-resident defendant objected to the jurisdiction of the court because of lack of venue. In sustaining that contention, the court said,

"Plainly, the case at bar is controlled by section
74 and is therefore expressly excepted from the
operation of section 78. The very provision
localizing actions under section 74 thus excludes the
application of section 78.
"* * * Under section 74 the plaintiff could sue
both defendants in the county where the injury
occurred. If he chose to sue in the county of
residence of but one of the two defendants, then both
reason and justice, to say nothing of the provision
of the Code, dictate that the nonresident should have
at least the option of saying whether or not he would
submit to a suit in that jurisdiction. Appellee has
carefully preserved his rights, and the provisions of
the Code are clear."

¶15 The same reasoning is here applicable. If the plaintiff had so desired, he could have maintained the action as against all defendants in the county where the cause arose but, if he chose to bring it in a county where venue did not lie as regarded the municipality, then, that defendant had the option of saying whether or not it would submit to a suit in that jurisdiction.

¶16 In the case of LaFayette v. Bass, 122 Okl. 182, 252 P. 1101, there were three defendants - a foreign corporation, a domestic corporation and an individual. The action was brought in the county where the cause arose and where plaintiff resided. It was held that the venue as to the foreign corporation was in the county where plaintiff lived or the cause arose,

¶17 In the case of Board of Com'rs of Kiowa County v. Kiowa Nat. Bank, 141 Okl. 271, 284 P. 634, it was held that a county was a municipal corporation and, since there was no specific statute fixing the venue of actions against it, the general statute as to domestic corporations,

¶18 In the case of Temple v. Dugger, 164 Okl. 84, 21 P.2d 482, it was held that an action having been rightly brought against a transportation company in a county through which or into which the line passes,

¶19 The case of Wray v. Garrett, 185 Okl. 138, 90 P.2d 1050, 1051, was an action for wrongful death, brought by the administratrix, of the deceased against the individual who owned the truck involved in the fatal accident, the individual who was the driver thereof, and the foreign corporate insurance carrier. The action was brought in the county of plaintiff's residence, compliance with

"However, it is settled that an action against two
or more defendants jointly liable may be maintained
against such defendants in any county that is proper
venue for any one of the defendants. Section 117 [12-117],