Burroughs v. Cocke

• Decision Date: 01 February 1916
• Docket Number: Case Number: 6093
• Citation: 156 P. 196,1916 OK 130,56 Okla. 627
• Parties: BURROUGHS v. COCKE & WILLIS.
• Court: Oklahoma Supreme Court

1916 OK 130

156 P. 196

56 Okla. 627

BURROUGHS v. COCKE & WILLIS.

Case Number: 6093

Supreme Court of Oklahoma

Decided: February 1, 1916

Syllabus

¶0 1. PROCESS--Service--Exemptions--Nonresidents. (a) A nonresident, who comes within the confines of this state for the purpose of attending upon the taking of depositions to be used in the trial of a cause pending in another jurisdiction in which he is one of the litigants, is privileged from service of summons while within the state upon that business, and he does not forfeit this privilege merely because he transacts other business not connected with the taking of the depositions, provided the controlling cause of his being within the state was the taking of the depositions. (b) But if the desire to transact other business not connected with the taking of the depositions was the controlling motive that brought him within the jurisdiction of the court, or if he fails to leave the state within a reasonable time after the taking of the depositions is completed, then he is not entitled to the exemption from service of summons.

2. APPEAL AND ERROR--Review--Questions of Fact. Evidence examined, and held sufficient to sustain the findings of the trial court that the party was not exempt from service of summons.

McPherren & Cochran, for plaintiff in error.

Works & Copping, for defendant in error.

MATHEWS, C.

¶1 The parties will be referred to as in the trial court. This was an action for attorney fees instituted by plaintiff against defendant in the district court of Choctaw county. Defendant resides in Chicago, Ill., but was served with summons while in Choctaw county. Soon after defendant was served with summons he filed a motion to set the same aside and, as his grounds therefor, alleged that he resided in Chicago and was a nonresident of the State of Oklahoma, and that, at the time of the service of summons on him, he was present in the town of Hugo, Choctaw county, Okla., in pursuance of a notice served upon him that depositions would be taken in said town on said date to be used in the trial of the case of N. T. Burroughs v. Payne Lumber Co., pending in the United States District Court at Chicago, he being the said plaintiff; that he was present at said time for no other purpose than the taking of said depositions, for the purpose of assisting and advising his attorneys; that he came directly from Chicago to Hugo for this purpose and that he returned immediately after the taking of same; that the summons was served upon him while he was still in attendance for the purpose of taking said depositions and before the same had been completed. This motion was heard before Judge A. H. Ferguson, who overruled the same and made the following findings of fact:

"The court finds that the witness for the defendant in this case testified that the defendant, N. T. Burroughs, came to Hugo, Okla., for the sole purpose of being in attendance on the taking of depositions in the case pending in the United States Court at Chicago. The evidence of the witnesses for the plaintiff indicates that the defendant had other business and came to Hugo to attend to other business. The defendant made inquiry while in Hugo about seeing other people at Idabel, Okla., where he had property; made inquiry about the connection of the trains in going to and from there, and the court is of the opinion that the defendant was not in attendance at the taking of these depositions, or was not in Hugo at that time for the sole purpose of being in attendance on the taking of depositions in the case pending in the federal court in Illinois.

"The defendant was in Hugo on other business besides the taking of the depositions at the time he was served with summons; that he arrived at Hugo on the 5th of June, about 4 o'clock p. m., and the summons was served on him on that date before the completion of the taking of the depositions; that he did not leave immediately after the taking of the depositions for Chicago, but left on the same day the taking of the depositions was completed, being in Hugo two days, and that he did not leave within a reasonable time after the taking of the depositions."

¶2 The cause was tried to a jury, Judge Hardy presiding, and a verdict returned in favor of the plaintiff in the sum of $ 500. On passing upon the motion for a new trial, Judge Hardy made the following findings:

"The motion for a new trial in this case presents several questions, the principal ones of which go to the jurisdiction of the court over the person of the defendant. Prior to pleading the case, the defendant filed his motion to quash the issuance and service of summons, which was overruled by Judge Ferguson, and the objection was preserved in the pleadings and is again urged in the motion for a new trial, and in support of the motion a transcript of the evidence taken at the original hearing of the motion is offered in evidence by agreement of both parties. It appears from the testimony of John Willis, one of the plaintiffs herein, that on the day the summons was served, the defendant, Burroughs, discussed with Willis the interests of the defendant in the timber business in McCurtain county, and stated to said Willis that he (Burroughs) intended to be here a few days and was going to try and make arrangements to clean up matters down there and see if he could not get something out of it, and made inquiry as to the running of trains from Hugo to Idabel. It further appears that defendant has considerable financial interests in McCurtain county, and that some of these interests conflicted with the interests of the Choctaw Lumber Company, or rather that he had interests in connection with the said Choctaw Lumber Company and that during the time defendant was in Hugo, C. E. Baxter, the timber man for the Choctaw Lumber Company was in Hugo. The defendant, Burroughs, also inquired of the plaintiff Willis where he would find R. H. Stanley, of the law firm of Howe & Stanley.

"John Cocke, one of the plaintiffs, testified that about the time of taking the depositions, he had a conversation with the defendant in plaintiff's office in the city of Hugo, in which defendant told him that he (defendant) would be here several days and wanted to take up certain matters with plaintiff after the taking of depositions was over. This witness also testified that Herman Dierks, president of the Choctaw Lumber Company, who resided at Kansas City, Mo., and Mr. Baxter, timber man for the Choctaw Lumber Company, who resided in Idabel, were in Hugo about the same time.

"On the hearing to quash the service, Judge Ferguson held that defendant was in Hugo at the time of taking the depositions on other business in addition to that of taking the depositions.

"The foregoing statement of the testimony in my judgment reasonably tends to support the conclusion reached on the first hearing, and I am also of the opinion that the defendant was in Hugo in connection with his timber interests in McCurtain county, and that he had a conference with the officials of the Choctaw Lumber Company, at about that time, and that he consulted with both of the plaintiffs concerning other matters and especially with the plaintiff Willis before the service of summons upon him. The testimony upon the trial of the case confirms me in these views, because in the correspondence between the parties, special and frequent reference is made to defendant's intentions to visit Oklahoma and look after the subject of this suit, together with other interests of the defendant in this state.

"There is ample evidence in the case to support the verdict of the jury, and, being of the opinion that there is no error in the trial, it follows that the motion for a new trial should be overruled, to all of which the defendant excepts."

¶3 But one assignment of error is urged here and that is, that the defendant was at the time of the service of summons upon him exempt therefrom, as he was in Hugo as suitor in a case then pending in the federal court at Chicago, being himself a resident of Chicago, and that h...