American Surety Co. of New York v. District Court of Third Judicial District of State

• Citation: 254 P. 515,43 Idaho 589
• Parties: AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Plaintiff, v. THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR ADA COUNTY, and DANA E. BRINCK, as One of the Judges of Said Court, Defendants
• Decision Date: 16 February 1927
• Court: United States State Supreme Court of Idaho

254 P. 515

43 Idaho 589

AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Plaintiff, v. THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR ADA COUNTY, and DANA E. BRINCK, as One of the Judges of Said Court, Defendants

Supreme Court of Idaho

February 16, 1927

CORPORATIONS-FOREIGN-INSURANCE COMPANIES-VENUE IN ACTIONS AGAINST-REMEDY WHEN SUED IN WRONG COUNTY-APPEARANCE-WAIVER OF RIGHT TO OBJECT TO JURISDICTION.

1. The rule, obtaining before amendment by Laws 1923, chap. 79, of C. S., sec. 6664, that, the statute being silent as to venue in actions against corporations, either a domestic corporation or a foreign corporation, doing business in the state and complying with its statutes relative to foreign corporations doing business in the state, may be sued in any county in the state, is not changed as to such foreign corporations by such amendment merely providing where action against domestic corporation shall be commenced and tried.

2. A foreign surety company, being under C. S., secs. 4921, 4926 an insurance company, where doing business in the state having complied with section 4949 by appointing the commissioner of commerce and industry as its agent on whom to serve process, may, under section 4967, be sued in the county where loss occurs or where policy-holder resides.

3. Venue in all actions against foreign insurance companies doing business in the state being specially fixed by statute the general provisions of the code relating to venue in actions against foreign corporations do not apply.

4. If action against foreign insurance company doing business in state is brought in wrong county, remedy is by motion under C. S., sec. 6665, for change of venue, and not by motion to dismiss.

5. Defendants, by obtaining from plaintiff extensions of time in which to plead to complaint and by moving for change of venue, held to have waived any right to objection to jurisdiction of court where action was brought.

Original proceeding. Application for writ of prohibition. Writ denied.

Application for a writ of prohibition denied.

Richards & Haga, for Plaintiff.

Where a state specifically provides a remedy and provides in what county the remedy may be enforced, it excludes all other remedies and all other courts. (Great Western Life Assur. Co. v. State, 181 Ind. 28, 102 N.E. 849, 103 N.E. 843.)

When a statute says that an action shall be "commenced" or "brought" in a certain county, as the county where the defendant resides or the cause of action arose, or where the corporation has its principal place of business, the action is by such statute made a local one and it can be brought only in the county where the specified conditions exist, and courts of other counties are without jurisdiction. (McMaster v. Advance Thresher Co., 10 Wash. 147, 38 P. 760; Dunham v. Shindler, 17 Ore. 256, 20 P. 326; Fratt v. Wilson, 30 Ore. 542, 48 P. 356; Hammel v. Fidelity Mut. Aid Assn., 42 Wash. 448, 85 P. 35; Whitman County v. United States Fid. etc. Co., 49 Wash. 150, 94 P. 906; State v. Alameda Con. Mines Co., 107 Ore. 18, 212 P. 789; Richman v. Wenaha County, 74 Wash. 370, 133 P. 467; Parke v. Commonwealth Ins. Co., 44 Pa. 422; McCauley v. Murdock, 97 Ind. 229; Boorum v. Ray, 72 Ind. 151; Kenney v. Greer, 13 Ill. 432, 54 Am. Dec. 439; Parker v. Palmer, 22 Ill. 489; State v. District Court, 94 Minn. 370, 3 Ann. Cas. 725, 102 N.W. 869; Hoagland v. Wilcox, 42 Neb. 138, 60 N.W. 376; Davis v. Ballard, 38 Neb. 830, 57 N.W. 527; Greacen v. Buckley & Douglas Lumber Co., 167 Mich. 569, 133 N.W. 538; Morgan v. Ryan, 12 Wend. (N. Y.) 265; Haywood v. Johnson, 41 Mich. 598, 2 N.W. 926; Coleman v. Lucksinger, 224 Mo. 1, 123 S.W. 441, 26 L. R. A. (N. S.) 934; City of Kirkwood v. Handlan, 182 Mo.App. 626, 168 S.W. 346; Kasch v. Williams (Tex. Civ. App.), 251 S.W. 816; Mosher v. Hunwaldt, 86 Neb. 686, 126 N.W. 143; Thompson v. Wright, 22 Ga. 607; State v. Joiner, 138 Wash. 212, 244 P. 551.)

When an action is made local by the statutes and required to be brought where the corporation has its principal place of business or where other specified conditions exist, it cannot, if brought in the wrong county, be transferred to the proper county. In such cases a writ of prohibition will lie against the exercise of any jurisdiction except to dismiss. ( State ex rel. Gray's Harbor Commercial Co. v. Superior Court of King County, 118 Wash. 674, 204 P. 783.)

By complying with the law relating to the designation of a person on whom process may be served, a foreign corporation obtains the same rights as a domestic corporation as to the venue of actions. (Webster v. Oregon Short Line R. Co., 6 Idaho 312, 55 P. 661; Boyer v. Northern P. Ry. Co., 8 Idaho 74, 66 P. 826, 70 L. R. A. 691; Smith v. Inter-mountain Auto Co., 25 Ida., 212, 136 P. 1125.)

Edwin Snow, for Defendants.

The amendment to C. S., sec. 6664, upon which plaintiff relies, relates by its express terms only to domestic corporations. Plaintiff being a foreign corporation, the amendment is not applicable. (Chapter 79, Laws 1923, p. 91; Boyer v. Northern P. Ry. Co., 8 Idaho 74, 66 P. 826, 70 L. R. A. 691; Thomas v. Placerville G. & Q. M. Co., 65 Cal. 600, 4 P. 641; Waechter v. Atchison etc. R. Co., 10 Cal.App. 70, 101 P. 41; Jennings v. Idaho R., L. & P. Co., 26 Idaho 703, Ann. Cas. 1916E, 359, 146 P. 101, L. R. A. 1915D, 115; Ivanusch v. Great Northern R. Co., 26 S.D. 158, 128 N.W. 333; Eickhoff v. Fidelity & Cas. Co., 74 Minn. 139, 76 N.W. 1030; New York Life Ins. Co. v. Pike, 51 Colo. 238, 117 P. 899.)

Plaintiff is a foreign insurance company and is, therefore, exempted from having or designating any county as that of its principal place of business or designating a statutory agent. (C. S., secs. 4936, 4949.)

The 1923 amendment relating to domestic corporations is under the Idaho constitution and laws merely a matter of venue and not a matter of jurisdiction. (Sec. 20, art. 5, Const.; Fox v. Flynn, 27 Idaho 580, 150 P. 44; C. S., sec. 6665; Thompson on Corporations, 2d ed., sec. 3010; Fresno Nat. Bank v. Superior Court, 83 Cal. 491, 24 P. 157; Griffin & Skelley v. Magnolia Fruit Cannery Co., 107 Cal. 378, 40 P. 495; Miller & Lux v. Kern County Land Co., 134 Cal. 586, 66 P. 856; Dee v. San Pedro R. Co., 50 Utah 167, 167 P. 246; Louisville & C. R. Co. v. Western Union Tel. Co., 218 F. 91.)

Chapter 79, Laws 1923, upon which plaintiff relies, has no application to this case, for the reason that the venue of actions against insurance companies is governed by special provisions of the Idaho statutes. (C. S., secs. 4921, 4926, 4967, 5121; 6 Thompson on Corporations, sec. 7426.)

Plaintiff has submitted itself to the jurisdiction of the Bannock county court and the Ada county court. (California Pine Box & Lumber Co. v. San Francisco, 13 Cal.App. 65, 108 P. 882; Multnomah Co. v. Western Basket Co., 54 Ore. 22, 99 P. 1046; Hupfield v. Automaton Piano Co., 66 F. 788; Adamson v. Bergen, 15 Colo. App. 396, 62 P. 629; National Coal Co. v. Cincinnati etc. Co., 168 Mich. 195, 131 N.W. 580; Cook v. American Exchange Bank, 129 N.C. 149, 39 S.E. 746; C. S., sec. 6681; Olcese v. Justice Court, 156 Cal. 82, 103 P. 317; Pingree Cattle Loan Co. v. Webb, 36 Idaho 442, 211 P. 556; Roberts v. Superior Court, 30 Cal.App. 714, 159 P. 465; Schleef v. Purdy, 107 Ore. 71, 214 P. 137.)

"If a party wishes to insist upon the objection that he is not in court, he must keep out for all purposes except to make that objection." (Pingree Cattle Loan Co. v. Webb, 36 Idaho 442, 211 P. 556; Pittenger v. Al. G. Barnes Circus, 39 Idaho 807, 230 P. 1011; Elliott & Healy v. Wirth, 34 Idaho 797, 198 P. 757; Fitzgerald & Mallory Const. Co. v. Fitzgerald, 137 U.S. 98, 11 S.Ct. 36, 34 L.Ed. 608.)

"The code provides in what counties the venue of an action may be laid, but if in contravention to those provisions the venue is laid in another county than that prescribed, the remedy given is a motion to change the place of trial." ( Benson v. Eastern Bldg. & Loan Assn., 174 N.Y. 83, 66 N.E. 627.)

VARIAN Commissioner, TAYLOR, J. Budge, Givens, Taylor, JJ., Wm. E. Lee, C. J., and T. Bailey Lee, JJ., concurring, GIVENS, J., Concurring Specially.

OPINION

VARIAN, Commissioner.

Original application for a writ of prohibition. Plaintiff seeks to restrain the defendants from proceeding with a trial of a certain action pending in the district court of the third judicial district, wherein Idaho Farm Development Company, a Delaware corporation, is plaintiff, and Idaho Construction Company, an Idaho corporation, and the American Surety Company of New York, a New York corporation, are defendants, and from making any order in said cause except to dismiss or strike said action from the calendar, upon the ground that defendants have no jurisdiction of said action.

The complaint was filed in the district court of the fifth judicial district, for Bannock county, May 4, 1925, and summons was served upon the Commissioner of Finance as the statutory agent of plaintiff herein. By mistake, the said commissioner returned the copies of the complaint and summons to counsel for plaintiff in that action. Said attorney thereupon orally, and by letter dated June 23, 1925 communicated with counsel for the American Surety Company of New York, advising him of the filing and service of complaint and process in the said action. On August 15, 1925, plaintiff here, defendant in the district court, filed a motion to dismiss the action in said district court, together with an affidavit in support thereof. Thereafter, on the same date, said surety company also served and filed its motion for change of place of trial from Bannock county to Ada county, upon the ground that the corporations defendant in said actions did not reside in Bannock county, and...