Davis v. District Court of Tulsa County

• Decision Date: 17 January 1928
• Docket Number: 19068.
• Citation: 264 P. 176,129 Okla. 236,57 A.L.R. 72,1928 OK 33
• Parties: DAVIS et al. v. DISTRICT COURT OF TULSA COUNTY et al.
• Court: Oklahoma Supreme Court

264 P. 176

129 Okla. 236, 57 A.L.R. 72, 1928 OK 33

DAVIS et al. v. DISTRICT COURT OF TULSA COUNTY et al.

No. 19068.

Supreme Court of Oklahoma

January 17, 1928

Rehearing Denied Feb. 21, 1928.

Syllabus by the Court.

By reason of section 6, art. 2, of the Constitution, providing the courts of justice of the state shall be open to every person and speedy and certain remedy afforded every wrong and for every injury to the person, property, or reputation, and right and justice shall be administered without sale, denial delay, or prejudice, and by reason of section 203, Compiled Oklahoma Statutes 1921, providing: "Actions may be commenced against any transportation or transmission company * * * in the county where the cause of action, or some part thereof, may have accrued, or, in any county through which or into which the lines of road or any part of the structure of such company may be, or passes; and the plaintiff may elect in which county he will bring the action," parties are not to be enjoined by a court of coordinate jurisdiction from prosecuting an action in another district court, because it be alleged in a verified petition that plaintiff is not a citizen of the state, that personal injuries were sustained in a county apart from where the action at law is filed, that practically all witnesses live in adjacent county, that witnesses cannot personally attend the trial, that it is allegedly necessary that the jury view the crossing where the alleged injury occurred.

Section 109, 14 R. C. L. 408: While courts of equity are loath to exercise their power to restrain actions in a court of law yet the doctrine that they may so act, on a proper showing justifying their interposition, is recognized and in fact well settled.

But a due regard for the rights of co-ordinate judicial tribunals a proper respect for their records and proceedings and for the protection and security of persons interested therein demands that this restraining power should not be exercised, except in cases where the purposes of justice clearly require it.

An action in equity, the sole purpose of which is to enjoin regular and orderly proceedings at law, will not lie.

Prohibition is the proper remedy where an inferior court is attempting to make an excessive and unauthorized application of judicial force in a case otherwise properly cognizable by it.

Original proceeding by Phil W. Davis, Jr., and another for prohibition to be directed to the District Court of Tulsa County, and R. D. Hudson, Judge thereof. Writ granted.

Baxter Taylor, of Oklahoma City, and Phil W. Davis, Jr., of Tulsa, for petitioners.

Owen & Looney, of Oklahoma City, for respondents.

RILEY J.

This is an original action wherein is sought a writ of prohibition against the district court of Tulsa county and the respondent R. D. Hudson, a judge thereof, to stay the further consideration of an action in equity and the enforcement of a temporary injunction issued by respondent in cause No. 40855 in the said district court.

The temporary injunction complained of restrains petitioners, duly licensed attorneys of this state, from further prosecuting an action at law for alleged personal injuries styled Stewart B. Ware v. Kansas, Okl. & Gulf Ry. Co., numbered 3907, and filed in the district court of Mayes county.

The Exhibit A attached to and made a part of the verified petition of plaintiff below presented to that court the action pending in the district court of Mayes county and showed the fact to be that the defendant railway company owned and operated a line of railway in the state of Oklahoma running through the county of Mayes as well as Muskogee county. This fact was also established by an affidavit filed in cause No. 40855 by Phil. W. Davis, Jr. The alleged injury made the basis of the action in Mayes county district court is set out in the exhibit as having occurred 3 miles west of the city of Muskogee at an intersection of the highway and the line of the railway company.

The verified petition below, as grounds for equitable relief, alleged: (1) That Ware was not a citizen of the state of Oklahoma. (2) That the alleged injuries complained of in the Mayes county action were alleged in that action to have been sustained in Muskogee county. (3) That practically all the witnesses live in or near Muskogee. (4) That in the Mayes county action the plaintiffs are attempting to vexatiously annoy and harass the defendants and to prejudice defendant's rights and prevent a fair trial. (5) To deprive defendant of its right to have witnesses personally attend the trial and testify by reason of filing the action in Mayes county. (6) That it will be necessary that the jury view the crossing where the alleged injury occurred.

All of these allegations except the first three were denied by a verified affidavit filed below by petitioner Davis, and in addition in the said affidavit it is stated, under oath, that the action in Mayes county district court is brought in good faith, that the cause is meritorious, and that the affiant intends to prosecute the action in good faith to a conclusion, and that there exists no purpose on behalf of affiant to harass, annoy, or vex the railway company.

No testimony was taken below. The verified affidavits constitute all evidence adduced, all of which is here presented.

Section 203, Compiled Oklahoma Statutes 1921, provides in part:

"Actions may be commenced against any transportation or transmission company * * * or in the county where the cause of action, or some part thereof, may have accrued; or, in any county through which or into which the lines of road or any part of the structure of such company may be, or passes; and the plaintiff may elect in which county he will bring the action."

Section 6, art. 2, Constitution of Oklahoma, provides:

"The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice."

No court has power to ignore an act of the Legislature. Hayne v. Justice's Court, 82 Cal. 284, 23 P. 125, 16 Am. St. Rep. 114, holding:

"A court that proceeds in the trial of a cause against the express prohibition of the statute is exceeding its jurisdiction, and may be prevented * * * by prohibition from this court."

Under section 203, supra, the action for personal injuries was legally brought in Mayes county. Newberry v. A., K. C. Ry. Co., 52 Kan. 613, 35 P. 210; Barse Com. Co. v. Turner, 56 Kan. 778, 44 P. 987; C., I. K. R. Co. v. Townsdin, 38 Kan. 45, 15 P. 889; Hannibal & St. J. R. Co. v. Kanaley, 39 Kan. 1, 17 P. 324.

It may be the court below considered the action in Mayes county legally brought, but granted injunctive relief to respondent for other reasons; as to what those reasons were we cannot know from the order of temporary injunction, for the order recites none.

We are not now concerned as to the correctness or lack thereof in the action of the lower court; that matter may well be considered on appeal, except in so far as we examine to ascertain whether the court below had jurisdiction to render the particular judgment. The court below had jurisdiction of the parties. It had jurisdiction of the subject-matter.

Section 109, 14 R. C. L. 408, reads as follows:

"While courts of equity are loath to exercise their power to restrain actions in a court of law, yet, the doctrine that they may so act, on a proper showing justifying their interposition, is recognized, and, in fact, well settled. The authorities are generally agreed that where by accident, mistake, fraud, or otherwise, a party has an unfair advantage in a proceeding in a court of law, which must necessarily make the court an instrument of injustice, and it is therefore against conscience that he should use that advantage, a court of equity will restrain him from so doing. The relief is generally granted on the ground that from certain equitable circumstances of which the court granting the process has cognizance, it is against conscience that the party inhibited should proceed in the cause. The object is to prevent an unfair use being made of a court of law, in order to deprive another party of his just rights or subject him to some unjust vexation or injury which is wholly irremediable in that tribunal. Such an injunction is regarded as an auxiliary writ to restrain parties from proceedings before the ordinary tribunals, where equitable elements are involved in the dispute. Thus an injunction against actions or claims for which a valid release has been made had been granted when the trial at law might affect the reputation and character of the defendant in the community because of charges and revelations as to his past conduct, whether real or fabricated, on which the claims were based. Similarly a mortgagor may maintain an action to enjoin the foreclosure of

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