Condon v. Leipsiger

• Decision Date: 03 December 1898
• Court: Utah Supreme Court
• Parties: PATRICK CONDON, RESPONDENT, v. HYMAN A. LEIPSIGER, APPELLANT, FRANK KNOX and SAMUEL J. KENYON, RESPONDENTS

55 P. 82

17 Utah 498

PATRICK CONDON, RESPONDENT, v. HYMAN A. LEIPSIGER, APPELLANT, FRANK KNOX and SAMUEL J. KENYON, RESPONDENTS

Supreme Court of Utah

December 3, 1898

Reversed with directions.

Messrs Shepard & Sanford, attorneys for appellant:

The contract was made at Salt Lake City, the escrow was deposited at Salt Lake City, the tender and refusal were made at Salt Lake City, the breach of the contract occurred in Salt Lake county.

Therefore we claim that, under article 8, section 5 of the constitution, which provides, "All civil and criminal business arising in any county, must be tried in such county," that this cause of action arose in Salt Lake county solely, and that the court in Juab county did not have jurisdiction of the subject matter.

The only action which plaintiff could maintain would be an action for the specific performance of the contract --an action in personam and not in rem. Hawes on jurisdiction, sec. 69; Wells on jurisdiction, sec. 116 and following; 2 Story on Eq Juris., sec. 743 and following; Johnson v. Kimbo, 40 Tenn. 557; 3 Blackstone, star page 294 and note; Bouvier's Dict. Real Act., Transitory Act.; Coon v. Cook, 6 Ind. 270; Merrill v. Beckwith (Mass.), 40 N.E. 855; Temple v. Dodge, (Texas), 31 S.W. 686; Seixas v. King, 2 So. Rep. 416; Burnley v. Stevenson, 24 Ohio Stat. 478; Kendrick v. Wheatley (Ky.), 3 Dana 34.

The case of Brown v. Bach, 17 Utah , in principle, is decisive of this case.

We refer the court to the case of White v. Adler, 42 P. 170, also Smith v. Smith, 88 Cal. 187.

To the same effect see Hogg v. Mack, 6 N.Y.S. 310.

Messrs. Brown & Henderson, attorneys for respondent:

An action to compel specific performance when both the land and the parties are within the jurisdiction of the court is one that is in rem and also in personam, and the court having jurisdiction over the land will enforce its decree by compelling delivery of the land itself, or by compulsory process against the defendant, it can do either.

While the authorities hold that an action may be brought, and the decree enforced by process against the person in a jurisdiction where the land is not, the authorities are equally clear and explicit that an action may be brought and prosecuted in a jurisdiction where the defendant is not, but where the land is. In such cases the action is purely in rem. Rourke v. McLaughlin, 38 Cal. 196; Newton v. Cronson, 13 N.Y. (3 Kernan) 587-592; Earl of Kildare v. Morrice, I Vern. 419; Arglass v. Muschamp, 1 Vern. 75.

This court held in Konold v. Rio Grande Western Ry. Co., 16 Utah 151, and in Deseret Irr. Co. v. McIntyre, 16 Utah 398, that the portion of our statute providing for the place of trial of the civil action relating to real estate was in force, and was not abrogated by the constitution.

ZANE, C. J. BARTCH and MINER, JJ., concur.

OPINION

Zane, C. J.:

It appears that on September 19th, 1896, a contract was made between the plaintiff and appellant Leipsiger, by which the latter agreed to sign a deed of conveyance of fifteen sixty-fourths of the Napoleon mining claim, situated in Juab county, Utah, and to place it in the hands of Samuel J. Kenyon, to be delivered to the plaintiff, upon his doing certain assessment work, mentioned, and paying $ 1,500 to Kenyon for appellant, on or before January 15th, 1897. It appears from the complaint that the deed was made and deposited with Kenyon, in pursuance of the contract; and that Leipsiger, on September 10, 1896, executed and delivered a deed to the same fifteen sixty-fourths to defendant Knox, while plaintiff was doing assessment work upon the claim; that on January 13, 1897, plaintiff tendered the $ 1,500 to Kenyon and to Knox, and demanded the deed, which they respectively refused to give. The plaintiff alleged further that Knox and his grantor combined to defraud the plaintiff, and that the conveyance to Knox was made for that purpose. The plaintiff asked the court to set aside the deed to Knox, and require Kenyon to deliver the deed to plaintiff, and, in case that could not be done, that a decree be rendered against defendant Leipsiger for the sum of $ 3,500, its alleged value.

Defendants Leipsiger and Knox answered, denying the allegations of the complainant, and alleging the contract set up in plaintiff's complaint was, on November 3, 1896, rescinded for a valuable consideration.

It appears the contract relied upon, the escrow, the tender, demand for a deed, and the refusal were all made in Salt Lake County. The court found the issue as to the rescission of the contract against the defendants and as to bad faith in the execution of the deed by Leipsiger to Knox, against the former and for the latter, and gave judgment against the defendant Leipsiger, in favor of plaintiff, for $ 3,000. From the judgment, the defendant Leipsiger has appealed, and insists the court below did not have jurisdiction to try the case, and that the judgment was erroneous for that reason.

The appellant relies upon the following provision of section 5 article 8 of the constitution of the state, "All civil and criminal business arising in any county must be tried in such county, unless a change of venue be taken in such cases, as may be provided by law." There was no change of venue in this case. The phrase civil business means the fact or facts that constitute the cause of action, and criminal business means criminal acts constituting the crime. Of course, the intent attending an act usually characterizes it as criminal or otherwise. When all the facts essential to a cause of action exist, the cause of action has arisen, and can only be tried in the county in which it arose. "In local actions, where the possession of lands or damages for an action, trespass or waste, etc., affecting land is to be recovered, the plaintiff must declare his injury to...