Dunn v. Dist. Court of Carter Cnty.

• Decision Date: 16 November 1912
• Docket Number: Case Number: 3958
• Citation: 35 Okla. 38,128 P. 114,1912 OK 705
• Parties: DUNN et al. v. DISTRICT COURT OF CARTER COUNTY.
• Court: Oklahoma Supreme Court

1912 OK 705

128 P. 114

35 Okla. 38

DUNN et al. v. DISTRICT COURT OF CARTER COUNTY.

Case Number: 3958

Supreme Court of Oklahoma

Decided: November 16, 1912

Syllabus

¶0 VENUE--Transitory Actions. Where an action is brought to recover damages occasioned by an alleged conspiracy on the part of defendants to deny plaintiffs the right to use certain land for pasture for cattle, and no judgment or relief is asked as to the real estate, the same involves damages to personal property, and is therefore transitory.

W. B. Johnson and L. S. Dolman, for petitioners.

Cruce, Cruce & Bleakmore and Kendrick, Davis & Smith, for respondent.

DUNN, J.

¶1 May 11, 1912, there was filed in this court by petitioners a petition for a writ of prohibition to be directed to the district court of Carter county, Hon. Stilwell H. Russell, judge, prohibiting said court from proceeding with the trial of an action therein pending, wherein Elizabeth Nail and Hugh Rogers, as plaintiffs, had sued T. H. Dunn and others, as defendants; the contention here being that the venue of the action lay in Murray county, and that the district court of Carter county was without jurisdiction. The petition in the lower court alleges, among other things, that plaintiffs are, and for a long time prior to the filing of the action had been, in the quiet, lawful, exclusive, and peaceable possession of certain described lands located in Murray county; that they were inclosed with a good wire fence, and are almost wholly suitable for grazing, and not suited for agricultural, purposes; that the plaintiffs had been using the same for such purpose, and during the year 1909 had pastured thereon about 2,000 head of cattle, which, in the months of June, July, and August, they shipped to the market; that after shipping the same, and on or about the 1st day of October, 1909, they purchased about 2,000 head of cattle, for the purpose of grazing and feeding them on the said pasture, and that, except for the acts of the defendants, they would have placed said cattle therein, and that, had they not been denied the right claimed, the said cattle would have made a profit to them of $ 16 per head, or an aggregate advance of $ 32,000; that the defendants above named, on or about the 1st day of October, 1909, conspired together to prevent plaintiffs from occupying said pasture by taking possession thereof, and by force and arms drove plaintiffs and their servants from the same; that if they had not been prevented by the defendants from grazing cattle upon the pasture they could and would have realized the further sum of at least $ 30,000; and that by reason of said trespass the said defendants are still preventing plaintiffs from pasturing the said cattle on the property. The action brought in this court is predicated upon the proposition that under the provisions of section 5580, Comp. Laws 1909, the same was cognizable only by the district court of Murray county, wherein the land lay. Said section reads as follows:

"Actions for the following causes must be brought in the county in which the subject of the action is situated, except as provided in section 5581 [which is not pertinent hereto]: 1st, For the recovery of real property, or of any estate or interest therein, or the determination in any form of any such right or interest. 2nd, For the partition of real property. 3rd, For the sale of real property under a mortgage, lien or other incumbrance or charge. 4th,

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