262 P. 220 (Or. 1927), State ex rel. Sullivan v. Tazwell

Citation:262 P. 220, 123 Or. 326
Opinion Judge:COSHOW, J. (after stating the facts as above).
Party Name:STATE ex rel. SULLIVAN v. TAZWELL.
Attorney:Wallace McCamant, of Portland (McCamant & Thompson, of Portland, on the brief), for plaintiff. Erskine Wood and Gunther F. Krause, both of Portland (Wood, Montague & Matthiessen, of Portland, on the brief), for defendant.
Judge Panel:RAND, C.J., and BELT and ROSSMAN, JJ., concur.
Case Date:December 13, 1927
Court:Supreme Court of Oregon

Page 220

262 P. 220 (Or. 1927)

123 Or. 326

STATE ex rel. SULLIVAN

v.

TAZWELL.

Supreme Court of Oregon

December 13, 1927

Department 1.

Original proceeding in mandamus by the State on the relation of Edward Sullivan, against George Tazwell, as Presiding Judge of the Circuit Court for Multnomah County. Writ granted.

This is an action of mandamus to require defendant to proceed with the trial of a personal injury action instituted by relator. Edward Sullivan against Luckenbach Steamship Company, Inc. Relator was injured while about to enter on his duty as a pilot on the Florence Luckenbach, a steamship belonging to said company. The injury occurred in the Columbia river near Astoria. The services of relator were sought by said company on said steamship as a pilot through the Columbia and Willamette rivers from Astoria to Portland, Or. He instituted an action in the circuit court for Multnomah county against said steamship company to recover $30,000 damages. A summons was duly issued and served upon the defendant, which is a Delaware corporation, but has and maintains an office for the transaction of business in the state of Oregon at Portland. Said steamship company especially appeared and moved to quash the service of the summons, " * * * for the reason that this action is brought under section 33 of the Merchant Marine Act of 1920, and that this court does not have jurisdiction to hear this cause, and that the venue is not properly laid. On the argument of this motion the attorneys for defendant will contend that section 33 of the Merchant Marine Act of 1920 provides that jurisdiction in actions of this nature shall be under the court of the district in which the defendant employer resides, or in which his principal office is located."

The motion was supported by an undisputed affidavit showing that said steamship company is a Delaware corporation, and has its principal office in the state of New York. After argument, the motion to quash the summons was sustained. This proceeding was instituted for the purpose of compelling defendant, who sustained said motion, to assume jurisdiction and proceed with the trial of said action.

Wallace McCamant, of Portland (McCamant & Thompson, of Portland, on the brief), for plaintiff.

Erskine Wood and Gunther F. Krause, both of Portland (Wood, Montague & Matthiessen, of Portland, on the brief), for defendant.

COSHOW, J. (after stating the facts as above).

A circuit court judge is an officer subject to mandamus within the purview of section 613, Or.L. Johnson v. Tucker, 85 Or. 646, 167 P. 787; State ex rel. v. Bradshaw, 59 Or. 279, 117 P. 284; Che Gong v. Stearns, 16 Or. 219, 223, 17 P. 871. The purpose of the writ of mandamus is to "compel the performance of an act which the law especially enjoins, as a duty resulting from an office. * * * " Section 613, above.

It appears from the alternative writ that defendant, as circuit judge, sustained the motion to quash the service of the summons in the action of relator against said steamship company, not because the service was not properly made, nor because the sheriff did not make a sufficient return of the service, but because he believed his court to be without jurisdiction of the defendant steamship company. It is conceded by the defendant that the service in all respects was sufficient to subject the defendant in [123 Or. 330] that action to the jurisdiction of the circuit court for Multnomah county. It is also conceded by defendant that said circuit court has jurisdiction of the subject-matter. Consistently from 1789, when the Judiciary Act of the federal government was passed, state courts have had jurisdiction of actions arising out of maritime transactions where a remedy according to the course of the common law was appropriate. 1 Stat. at Large 77, § 9; 36 Stat. at Large 1091, § 24, subd. 3; 40 Stat. at Large, 395, c. 97, §§ 1 and 2; 42 Stat. at Large, 634, c. 216; clause 3 of section 24 of the Judicial Code (28 USCA § 41, subd. 3). There is no controversy in this proceeding regarding the jurisdiction of the circuit court for Multnomah county over the subject-matter which is the cause of the action of relator against said steamship company.

As we understand the contention of defendant, it may be succinctly stated thus: Because relator may avail himself of the provisions of section 33 of the Jones Act (46 USCA § 688; U.S.Comp.St. § 8337a), said steamship company has the privilege of being sued only in the district where it resides or has its principal office. The language relied upon by defendant is as...

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