Dee v. San Pedro, Los Angeles & S.L.R. Co.

• Decision Date: 06 August 1917
• Docket Number: 3035
• Citation: 167 P. 246,50 Utah 167
• Court: Utah Supreme Court
• Parties: DEE v. SAN PEDRO, LOS ANGELES AND S. L. R. CO

167 P. 246

50 Utah 167

DEE v. SAN PEDRO, LOS ANGELES AND S. L. R. CO

No. 3035

Supreme Court of Utah

August 6, 1917

Appeal from District Court, Second District; Hon. J. A. Howell Judge.

Action by Claude M. Dee against the San Pedro, Los Angeles and Salt Lake Railroad Company, a corporation.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Dana T Smith for appellant.

APPELLANT'S POINTS

It is manifest that this assignment was merely for the purpose of endeavoring to give the Weber County Court jurisdiction. Such an assignment is not sufficient to give the court jurisdiction.

"Colorable collusive or fictitious assignments of causes of action, made merely to evade the provisions of venal statutes, being a fraud upon the court, are void and will not operate to give the assignee the benefits accorded plaintiffs under the statutes." 40 Cys., p. 103; Diffenderffer v. Rowden, 83 Mo.App. 268; Parsons v. Brown, 50 N.H. 484; Waldrep v. Roquemore, 127 S.W. 248; Taylor v. Sturgis, 29 Tex. Civ. App. 270; 68 S.W. 538; Jones v. Austin, 6 Tex. Civ. App. 505; 26 S.W. 144. The rule laid down in the United States Courts, where citizenship of the parties is the jurisdictional ground, and where the principal is the same as it is in the case at bar, is that the court, in determining the question of jurisdiction, looks to the citizenship of the real parties in interest, not to that of merely nominal parties. Huff v. Hutchinson, 14 Howard, 586; 14 Law Edition, 553; Browne v. Strode, 5 Cr. 303; 3 Law Ed. 108; McNutt v. Bland, 2 Howard, 9; 11 Law Ed. 159; Myuse of Markley v. Baldwin, 112 U.S. 490; Indiana ex rel. Stanton v. Glover, 155 U.S. 513; Williams v. Ritchie, 3 Dill. 406; Ruckman v. Palisade Land Co., 1 F. 367; Woolrich v. McKenna, 8 F. 650; Wiggins v. Bethune, 29 F. 51; Voss v. Ninebar, 68 F. 974; Blumenthal v. Craig, 81 F. 320.

C. C. Richards for respondent.

RESPONDENT'S POINTS

A just and liberal construction of section 2931x1 Compiled Laws of 1907, means that when a resident of the state has a cause of action which is transitory and arose out of the state he may sue either in the county where he resides or in the county where the principal defendant resides, or if such defendant is a corporation then where it has its principal place of business. The legislation was not intended to hinder or prevent assignments of causes of action for value and in good faith, in the due course of business, or to make them more onerous to collect by the assignees than they would be by the assignors. The intent was and is to allow any plaintiff to commence suit in his own county or in the defendant's county, whichever he prefers. Upon this point the case of Stone v. Railroad Co. reported in 32 Utah 185-187, is directly in point.

If, however, the court should hold that our contention is unsound the defendant was not entitled to have a change of venue granted for neither the pleadings, the demand, nor the affidavit upon which the court acted disclosed that the plaintiff was not a resident of Weber County (wherein the suit was commenced) nor did they, or either of them, charge or intimate that the assignment of the cause of action had not been bona fide and for a valuable consideration, nor that the assignment had been made for the purpose of conferring jurisdiction upon the court to hear the cause. Under such a state of facts the trial court, and this court, will presume that the trial court had jurisdiction. 40 Cyc. 153, 154, 157, 160, 165; 4 Enc. P. & P. 431, 432, 434, 435, 437; Granger's Union v. Ashe, 12 Cal.App. 143, 106 P. 890; Adamson v. Bergen, 15 Colo. App. 396, 62 P. 630; De Wein et al. v. Osborn, 12 Colo. 407, 21 P. 190; Chase et al. v. Railroad Co., 83 Cal. 468, 23 P. 533; Pioneer S. & L. Co. v. Peck, (Tex.) 49 S.W. 169.

THURMAN, J. FRICK, C. J., and McCARTY, CORFMAN, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

Appeal from a judgment of the district court of Weber County. The action is for damages caused by injuries to certain horses transported by appellant as a common carrier.

The complaint, in substance, alleges that one Sheffer delivered the horses, the property of Sheffer and Stewart, to defendant at Salt Lake City, to be transported to Stewart, at Los Angeles under a written agreement executed by the parties for safe transport and delivery; that there were twenty-three horses, of the value of $ 4,000; that Sheffer and Stewart agreed to pay for the transportation $ 216; that the defendant did not safely deliver said animals according to agreement, but in a negligent and careless manner, so that while on board the train outside of Utah and in the states of Nevada and California, and prior to their delivery, three of the horses were injured and thereafter died, and the remaining twenty head were deprived of food and water and became starved, shrunken, and emaciated, all to the damage of the owners in the sum of $ 665; that the cause of action was thereafter assigned to the plaintiff.

The original complaint did not allege that the damages occurred outside of Utah and the defendant appeared and demurred to the complaint, and at the same time filed an affidavit to the effect that defendant is a corporation with its principal place of business at Salt Lake City, Salt Lake County, Utah; also an affidavit of merits with demand in writing that the trial of the action be had in Salt Lake County, under the provisions of chapter 93, Sess. Laws Utah 1913. Thereafter the demurrer and application for a change of venue came on for hearing, and the plaintiff was permitted to amend his complaint so as to show that the cause of action arose outside of the state of Utah. The demurrer was overruled, and the motion for a change of venue denied.

Defendant filed an answer admitting that it received the horses under a written agreement to transport them to Los Angeles; that some of the horses were injured. For want of knowledge defendant denied the assignment to plaintiff, and, generally, denied the remaining allegations of the complaint. Further answering, defendant pleaded, in effect, the terms of the written agreement, the material parts of which will be referred to as the same become necessary in the course of this opinion. Defendant also alleged the court had no jurisdiction.

Plaintiff filed a reply admitting and denying certain allegations of new matter in the answer.

The case was tried to a jury, resulting in a verdict for plaintiff in the sum of $ 712.02, including interest, for which sum judgment was entered.

Appellant has alleged numerous assignments of error. Such as have not been waived will be considered and disposed of in the order presented in appellant's brief.

The application for a change of venue was made under the provisions of chapter 93, Sess. Laws Utah 1913. The statute re-enacts sections 2932 and 2933 of the Revised Statutes of 1898, which had been repealed by the Legislature in 1901 (Laws 1901, c. 23). The sections, as amended, provide in part:

"In all other cases (meaning cases not included in the preceding sections of Comp. Laws, 1907) the action must be tried in the county in which the defendants, or some of them, reside at the commencement of the action," etc.

The application, affidavit and demand for change of venue were regular and in due form. The proceeding was regular in every respect and sufficient, as the case then stood, to entitle defendant to have the action transferred to Salt Lake County. At this stage of the proceeding, however, the plaintiff obtained permission of the court to amend his complaint by alleging that the cause of action arose outside of Utah and in the states of Nevada and California. By this amendment the case was brought within the provisions of the next preceding section of Comp. Laws Utah 1907, viz. section 2931x1, which, in part, provides:

"All transitory causes of action arising without this state in favor of residents of this state shall, if suit is brought thereon in this state, be brought and tried in the county where such resident resides, or in the county where the principal defendant resides, or if the principal defendant is a corporation, then in the county where such resident resides or in the county where such corporation has its principal place of business, subject however, to a change of venue as provided by law," etc.

The amendment destroyed the effect of appellant's motion by materially changing the conditions which existed at the time the motion was made. The record does not disclose that the motion was renewed or a new one filed, but, as respondent in this brief admits that appellant renewed its motion after the complaint was amended, we will assume that such was the case. If it was renewed, however, it must have been in the same form as the one made before the complaint was amended. The sufficiency of the motion, under the changed conditions, is therefore drawn sharply in question.

Appellant has assigned as error the overruling of the motion and earnestly contends that the motion should have been granted. Before proceeding to a determination of this question it is necessary to arrive at a rational and intelligent understanding of the real point in controversy between the parties. Appellant contends that, under the section of the statute last quoted, the cause of action arose in favor of Sheffer, one of the owners of the property residing in Cache County, and that therefore either Cache County or Salt Lake County where appellant's principal place of business is located, was the county in which the action should have been commenced; that, even though the assignee might have had the right to sue, as plaintiff, still he should have sued in one or the other of the counties named. On the other hand as, we understand it, the respondent contends...