Ville De Paris, B. H. Dyas, Corp. v. Connor

1926 OK 466, 246 P. 587, 117 Okla. 268, 1926 Okla. LEXIS 799

• Court: Supreme Court of Oklahoma
• Decided: May 11, 1926
• Docket: 16609
• Status: Published

Opinion

Opinion by

DI'OKiSON, O.

The plaintiff in error was plaintiff and the defendant in error defendant in the court below, and will-liereafter be referred to as plaintiff and defendant.

On the 7th day o-f January, 1925-, die-plaintiff commenced this action in the district court of Muskogee county against the defendant upon a promissory note. The petition was in the usual form, and alleged that the plaintiff was a coaporation organized under the laws of the s'-ate of California, with -its principal place of business at Los Angeles, Cal.: and that the defendant was a resident of McIntosh county, Okla. The-note sued on was attached to and made a part of the pe'-ition. The note, it appears, was executed at Los Angeles, Cal., on December 24, 1919, and was payable to the plaintiff at its office on or before January 24, 1920. Summons was duly issued and served on the defendant in Muskogee county.

On February 6, 1925, the defendant appeared specially, and moved the court to. dismiss the cause, for the reason and upon the ground that the petition discloses upon its face that the colurt had no. jurisdiction of the parties or -the subject-matter of the action. On the same day the defendant specially appeared and filed a motion to quash-the summons and service thereof, upon the ground that said sunfmons was not served and returned in the manner -required bylaw. On the 27th day of February, 1925. these motions were taken up and considered-by the court and sustained, and the summons quashed and the cause dismissed. The plaintiff excepted to this ruling', and has appealed -to this court upon petition in error with case-made attached..

It will be observed that this suit is by ■ the original payee of the promissory note in suit, against the maker thereof.

Tlie theory upon which the trial court sustained the motions appears to have been that, inasmuch as it was alleged in the petition that the delendant is a resident of McIntosh county, the district court of Muskogee county had nol jurisdiction over her notwithstanding she was regularly served with summons in Muskogee county. Article 4 of chapter 3, sections! 199 to 207, inclusive, C. O.S. 1921, fixes the venue of civil actions in the state. After providing the venue of various actions it is enacted that:

“Every other action must be brought in tlie county in which the defendant or some one of the defendants resides or may be summoned.” Section 207, C. O. S. 1921.

An action by the original payee against the maker of a promissory note is not within any of the exceptions mentioned in said chapter, and may be brought in any county in which the defendant is summoned. There is no contention that at the time the defendant was served with summons, she was going to, returning, or attending court, in obedience to a subpoepa, or as a party, and neither is there any contention that she was ?n Muskogee county through any fraud, artifice, trickery, or procurement' on the part of the plaintiff.

The court clearly erred in sustaining the motion dismissing the cause. Clark v. Willis, 44 Okla. 303, 144 Pac. 587.

The case reversed and remanded to the district court of Muskogee county, with directions to overrule the motion to quash the summons and the motion to dismiss the cause, and to reinstate said cause, and to further proceed in conformity with the views herein expressed.

By the Court: It is so ordered.

Note. — See under- (1) 40 Cyc. p. 102.