Atlas Acceptance Corporation v. Pratt

• Decision Date: 02 January 1935
• Docket Number: 5446
• Citation: 39 P.2d 710,85 Utah 352
• Court: Utah Supreme Court
• Parties: ATLAS ACCEPTANCE CORPORATION v. PRATT, District Judge, et al

39 P.2d 710

85 Utah 352

ATLAS ACCEPTANCE CORPORATION v. PRATT, District Judge, et al

No. 5446

Supreme Court of Utah

January 2, 1935

Original proceeding in mandamus by the Atlas Acceptance Corporation against the Honorable Eugene E. Pratt, Judge of the District Court of the Second Judicial District in and for Weber County, and another.

ALTERNATIVE WRIT MADE PERMANENT.

Thomas & Thomas, of Salt Lake City, for plaintiff.

D. J Wilson and W. L. Skanchy, both of Ogden, for defendants.

STRAUP Chief Justice. ELIAS HANSEN, FOLLAND, EPHRAIM HANSON, and MOFFAT, JJ., concur.

OPINION

STRAUP, Chief Justice.

This is an original proceeding in this court wherein the Atlas Acceptance Corporation was granted an alternative writ of mandate directing the district court of Weber county to grant a change of venue in a cause therein pending wherein W. F. Pickett is plaintiff and the Atlas Acceptance Corporation and the Metropolitan Casualty Insurance Company of New York are defendants, or show cause for not doing so.

The material facts are that in March, 1932, the Atlas Company, a corporation organized under the laws of Utah with its principal place of business at Salt Lake City in Salt Lake county, commenced an action in replevin in the district court of Weber county against W. F. Pickett to recover the possession of an automobile. To get the immediate possession thereof, the Atas Company at the commencement of the action made and filed the usual affidavit and gave the usual undertaking for such purpose with the Metropolitan Company as surety, whereby the property in due course was taken in custody by the sheriff and on April 26, 1932, was delivered to the Atlas Company. The obligatory portion of the undertaking is that the undersigned "in consideration of the premises and the delivery of the said property to the said plaintiff, do hereby undertake and acknowledge to the effect that they are jointly and severally bound in the sum of Seven Hundred ($ 700.00) Dollars, being double the value of said property as stated in the affidavit, for the prosecution of the said action and for the return of the said property to the defendant, if the return thereof be adjudged, and for the payment to the said defendant of such sum as may be from any cause recovered against the said plaintiff."

On April 28, 1932, two days after the property was delivered to the Atlas Company, the action on its motion was dismissed. So, in March, 1933, Pickett brought an action in the district court of Weber county on the undertaking against the Atlas Company and the Metropolitan Company, its surety, wherein the proceedings in the replevin action are alleged and that the Atlas Company, when the automobile was delivered to it April 28, 1932, sold and disposed of it and converted it to its own use, and that it and the Metropolitan Company failed and refused to return it to Pickett who at all times was the owner thereof, to his damage in the sum of $ 700 and $ 50 attorney's fees. In due time the Atlas Company appeared in the action, filed an affidavit of merits, averred that it was a corporation organized under the laws of Utah with its principal place of business at Salt Lake City, Salt Lake county, and was a resident of and resided in that county; that, if the undertaking alleged in the complaint was entered into by the Atlas Company (it was not signed by it), it was entered into at Salt Lake City; that whatever delicts or wrongs or omissions alleged in the complaint (all of which were denied), if committed, were committed in Salt Lake county; that summons in the action was served on the Atlas Company in Salt Lake City, the place of its residence; and that the Metropolitan Company was a corporation organized under the laws of New York and authorized to do business in the state of Utah, with its office and principal place of business at Salt Lake City; and further averred that none of the obligations of the undertaking or otherwise, as alleged in the complaint, were to be performed in Weber county and, if at all, were to be performed in Salt Lake county, and that whatever breaches or delicts were committed were committed in Salt Lake county and not in Weber county. At the same time the Atlas Company with the filing of the affidavit also filed a general demurrer for want of facts and a special demurrer on the grounds of uncertainty and commingling several causes of action without separately stating them.

Thereupon a motion in accordance with the affidavit was made and filed by the Atlas Company demanding a change of venue of the cause from Weber county to Salt Lake county for trial. No counter affidavits were filed. The motion on objections of Pickett was denied. Thereupon the Atlas Company on its verified petition, filed in this court, on substantially the grounds heretofore stated, was granted an alternative writ of mandamus directing the court below to grant the change of venue or show cause. Pickett filed an answer and return on his own behalf and on behalf of the court below admitting substantially all the facts alleged in the petition, but denying the conclusions that the cause was triable only in Salt Lake county, and averred that it also was triable in Weber county, for that the obligations of the undertaking were to be performed in Weber county and not in Salt Lake county, and that the alleged breaches thereof occurred in Weber county.

The disposition of the question hinges largely on a construction of our statute, R. S. Utah 1933, 104-4-4, which provides:

"When the defendant has contracted in writing to perform an obligation in a particular county of the state and resides in another county, an action on such contract obligation may be commenced and tried in the county where such obligation is to be performed or in which the defendant resides."

After enumerating other provisions not here material, the statute, section 104-4-7, further provides that, in all other cases, the action must be tried in the county in which the cause of action arises or in the county in which any defendant resides at the commencement of the action, and that, if any such defendant is a corporation, any county in which such corporation has its principal officer or place of business is to be deemed the county in which such corporation resides within the meaning of such section.

The provisions of the statute were considered by this court in the cases of Emerson Brantingham Co. v. Giles, 53 Utah 539, 174 P. 181, and in Buckle v. Ogden Furniture & Carpet Co., 61 Utah 559, 216 P. 684. In the latter case this court, among other things, said that the Legislature intended to establish the general right of persons sued to have the action tried in the county where one of them resides, and that actions which may be tried elsewhere are limited and restricted to those which the statute itself excepts from the general rule. One of the exceptions is section 104-4-4, supra.

The question thus is, did the defendants in the action brought in Weber county against them, by the undertaking sued on, contract in writing to perform their obligation--the return of the automobile to Pickett if return thereof was adjudged and pay such sum as might be recovered against them--in Weber county? It is conceded that no such express obligation is contained in the undertaking and no place expressly stated therein where such obligations are to be performed. It is the contention of the Atlas Corporation that, to bar it from the privilege of having the venue changed to its residence, it is essential that it be made to appear on the face of the written contract itself that it by express terms had agreed to perform the obligation at or in a place or county other than in the county of its residence; while, on the other hand, it is the contention of Pickett, the plaintiff bringing the action, that it is enough if by necessary implication it is made to appear that performance was to be had in the county where the action was brought. To support its contention the Atlas Company chiefly cites and relies on the cases of Cohen v. Munson, 59 Tex. 236; Eyres v. Crockett State Bank (Tex. Civ. App.) 223 S.W. 268; Prader v. Nat. M. Acc. Ass'n, 107 Iowa 431, 78 N.W. 60, 61; Independent School Dist. v. Reichard, 39 Iowa 168; Hunt v. Bratt, 23 Iowa 171; Moyres v. Nursery Co., 125 Iowa 672, 101 N.W. 508; Wixom v. Hoar , 158 Iowa 426, 139 N.W. 890.

Texas had a statute (Rev. St. 1897, art. 1198 (5) now Vernon's Ann. Civ. St. art. 1995 (5), very similar to section 104-4-4 supra, of our statute, and which provided that "where a person has contracted in writing to perform an obligation in any particular county, in which case suit may be brought either in such county, or where the defendant has his domicile." In Cohen v. Munson, supra, under the Texas statute, the court held that the exception contained in the statute--where one contracted in writing to perform an obligation in a particular county--did not apply to a surety on an administrator's bond in the administration of an estate commenced and had in a county different from that of the surety's residence, when such bond did not require the surety to answer for the defalcation of its principal in any particular county. The court said the contract of the sureties was to pay moneys to a certain amount in case their principal did not well and truly perform his duties as administrator, but not to pay in any particular place, so that there was no express contract to perform the obligation in the county where the administrator was to perform his duties, a county other than the residence of the sureties; that such obligation to pay in the county other than the residence of the sureties could not be implied from the terms of the instrument itself; that the mere fact that the administration...