Bd. of Com'Rs of Kiowa Cnty. v. Kiowa Nat. Bank of Snyder

• Decision Date: 17 December 1929
• Docket Number: Case Number: 18620
• Citation: 1929 OK 547,284 P. 634,141 Okla. 271
• Parties: BOARD OF COM'RS OF KIOWA COUNTY et al. v. KIOWA NAT. BANK OF SNYDER.
• Court: Oklahoma Supreme Court

1929 OK 547

284 P. 634

141 Okla. 271

BOARD OF COM'RS OF KIOWA COUNTY et al. v. KIOWA NAT. BANK OF SNYDER.

Case Number: 18620

Supreme Court of Oklahoma

Decided: December 17, 1929

Syllabus

¶0 1. Counties -- Drains -- Venue of Action Against County on Drainage District Bonds Where District Situated in Two Counties.

Where counties are parties litigant, there being no statute fixing the venue of an action against a county in express terms, they are subject to the general provisions of law contained in chapter 3, art. 4, C. O. S. 1921, fixing the venue of civil actions. And an action to recover on bonds issued by a county for the account of a drainage district, where such drainage district is situated in two counties, may be brought in the district court of either of such counties, whether the action be regarded as coming within the provisions of either section 201 or 202 of said article 4, since in either case the venue may be in the county in which the cause of action or some part thereof arose.

2. Same--Duty of Court to Transfer Cause to Other County After Territory Comprising Drainage District Is Transferred to Other County.

Where, in a case as that described in the first paragraph of this syllabus, the territory comprised in the drainage district in the county within which the action was filed is transferred to the other county subsequent to the filing of the action and prior to the trial thereof, by virtue of sections 4287, 4288, and 4289, C. O. S. 1921, upon showing of such transfer being made by the defendants, it is mandatory upon the court to order the transfer of such case to the district court of such other county, and there being no express direction as to the manner in which such showing may be made, this may be done in any form of pleading obtaining in the trial of civil actions. When such showing has been made by an objection to the introduction of evidence at the opening of the trial, it is error for the court to overrule such objection and proceed with the trial of the case, with all proceedings thereafter had being in excess of the jurisdiction of the court and without binding force or effect.

Commissioners' Opinion, Division No. 1.

Error from District Court, Kiowa County; E. L. Mitchell, Judge.

Action of debt by Kiowa National Bank against the Board of County Commissioners of Kiowa county et al. Judgment vacated, and cause remanded, with directions.

Geo. L. Zink, W. A. Bolding, and Herman S. Davis, for plaintiffs in error.

Bailey & McLaury, for defendant in error.

TEEHEE, C.

¶1 This is an action of debt originally brought by the Kiowa State Bank of Snyder, in the district court of Kiowa county against the board of county commissioners of Kiowa and Tillman counties, to recover on four drainage district bonds aggregating in principal the sum of $ 4,500 with interest at 6 per cent. per annum, from April 1, 1920, their maturity date. The bonds were the last in maturity of a series of $ 17,500, dated April 1, 1910, issued by Kiowa county for the account of Otter Creek Drainage District No. 1, theretofore created and then existent in said county, a part of which district was thereafter and prior to the filing of the suit transferred to Tillman county. The bank predicated its right of recovery on the ground of its being a bona fide holder of the bonds. The suit was filed on March 24, 1922.

¶2 On September 12, 1922, the Kiowa National Bank of Snyder, defendant in error here, having acquired the assets of the Kiowa State Bank through conversion from a state to a national bank, was substituted as plaintiff, at which time the drainage district and one Orville Thompson, drainage commissioner of said district, were made additional parties defendant with the named counties, all of whom are plaintiffs in error here, and to whom our further reference will be as plaintiff and defendants, respectively, as they appeared in the trial court, or by name as the case may be.

¶3 Upon substitution of the party plaintiff, amended pleadings were filed in which plaintiff affirmed the substantial allegations of fact contained in the original petition, that is to say, that plaintiff's transferor was a bona fide holder of the bonds, copies of which were attached to and made a part of the pleadings, whose rights therein it acquired through conversion of transferor into a national bank, and that all of the conditions precedent to its right of recovery had been complied with in that demand for the payment of the bonds had been made upon the defendants and by them refused; and, further, that as the original assessments made at the time of the issuance of said bonds were insufficient to raise the necessary funds for the payment of the principal and interest of all of such bonds at their maturity through error in making the estimates of said assessments so that there were insufficient funds to meet the payment of the last maturing bonds here sued on, written demand had been made upon said defendants requesting that they make such further additional assessments against the property benefited within said drainage district for the payment of said bonds, which demand of re-assessment was by said defendants refused; and thereupon prayed judgment against the defendants in the amount of the bonds with interest from April 1, 1920, at 6 per cent. per annum, and for a writ of mandamus against the defendant counties requiring and commanding them to make the said assessments.

¶4 Defendants separately answered. The answers, in substance and effect, were admission of the issuance of the bonds as alleged by plaintiff; denial of liability in that the bonds on their face showed that they were payable out of a special fund derivable by assessments against property ascertained to be benefited within the drainage district, in which assessments the duties of levying and collection thereof prior to the filing of the suit had been fully performed where performance was by law required of said defendants or any one of them; that the court was without jurisdiction of either the parties or the subject-matter of the suit; that the bonds were void in that they were not approved by the State Bond Commissioner, nor sold in the manner authorized by the law of issuance; that they were fraudulently placed upon the market, and that plaintiff was not a bona fide holder thereof. Plaintiff denied all new matter contained in the answers.

¶5 Prior to trial, the remaining part of the drainage district in Kiowa county was transferred to Tillman county, so that at the time of trial no part of such district was within the confines of said Kiowa county.

¶6 The cause was tried to the court without the intervention of a jury. Upon controverted questions of fact, the court found for the plaintiff, and thereupon rendered judgment against the defendants for the principal sum of the bonds sued on with interest thereon from April 1, 1920, at 6 per cent. per annum, as prayed for by plaintiff, and awarded a writ of peremptory mandamus requiring and commanding the defendant Kiowa county to pay over to plaintiff such fund as it may have on hand derived from the special assessments for application on said judgment, and a like writ against both the defendant counties requiring and commanding them to include the amount of the judgment rendered in their next regular estimated needs of their respective counties, and make the necessary levies for the payment of the same, and, further, that the defendant Tillman county make such additional and special assessments as may be necessary against the property chargeable within the limits of the drainage district, and upon collection thereof reimburse the defendant counties for such monies as they may have paid out on account of the judgment rendered against them, and that said defendant counties make due and proper return of the writ showing by a certificate the things commanded to have been done.

¶7 For reversal of the judgment several propositions are submitted, but, in the view we shall take of the case, it is only necessary to consider the question of the jurisdiction of the court to have proceeded with the trial of the cause over the objection to the introduction of evidence interposed by defendants at the opening of the trial.

¶8 There were several grounds of objection, but the one here material is that based on the ground that upon transfer of the remaining part of the drainage district in Kiowa county to Tillman county, subsequent to the filing of the suit and prior to the hearing thereof, the district court of Kiowa county was thereby divested of its jurisdiction of the cause.

¶9 In presenting the question, defendants proceed on the theory that the court was without jurisdiction of either the subject matter or the parties, and that if it be considered that the cause was properly filed in the district court of Kiowa county, when the fact of detachment of the drainage district therefrom and attachment thereof to Tillman county as an entirety was brought to the attention of the court, that operated as a divestiture of its jurisdiction. The first phase requires but passing notice, as the argument in that relation principally goes to the question of nonliability of the parties defendant, and to a misjoinder of them, rather than to the point made. The court being of that class vested with general original jurisdiction (section 10, art. 7, Const. Okla.) and the relief sought being of a character to call into exercise that jurisdiction, we are unable to see that these questions have any bearing upon the point. We therefore dismiss this phase and pass to the other phase which raises the question of jurisdiction from the standpoint of the venue of the case.

¶10 Thereunder defendants contend, in effect, that if the venue was originally in Kiowa county, this was lost upon transfer of the entire drainage district from that county to Tillman county, and that assuming such transfer relieved Kiowa county of all liability, it must follow that to bind ...