First Nat. Bank of Seminole v. Henshaw

• Decision Date: 11 September 1934
• Docket Number: Case Number: 25578
• Citation: 169 Okla. 49,1934 OK 410,35 P.2d 898
• Parties: FIRST NAT. BANK OF SEMINOLE et al. v. HENSHAW, Judge.
• Court: Oklahoma Supreme Court

1934 OK 410

35 P.2d 898

169 Okla. 49

FIRST NAT. BANK OF SEMINOLE et al. v. HENSHAW, Judge.

Case Number: 25578

Supreme Court of Oklahoma

Decided: September 11, 1934

Syllabus

¶0 1. Venue--Statutes--Right of Defendant to Be Sued in County Where He Resides or May Be Summoned.

The venue of actions not otherwise specifically provided for is in the county where defendant resides or may be summoned.

2. Same.

In that class of actions where the venue is fixed in the provisions of section 117, O. S. 1931, the privilege of being sued in no other county than that of one's residence or in the county where one may be summoned is a valuable right.

3. Prohibition--"Discretion" as to Grant of Writ.

The "discretion" spoken of in the authorities is a legal discretion; a discretion to be exercised in discerning the course prescribed by the law, according to principles ascertained by adjudicated cases.

4. Venue--General Rule in Transitory Actions--Corporations.

The general rule is that a defendant in a transitory action is entitled to have a trial in county of his residence, or where he may be summoned, and a corporate defendant in county where is located its principal place of business or in which any of the principal officers thereof may reside or be summoned, or in the county where the cause of action or some part thereof arose.

5. Venue--Proceeding by Receiver to Have Stranger Made Party to Suit to Determine Title to Property Treated as Independent Action as Affects Venue.

A petition by receiver to make stranger to receivership party to suit to determine title to certain property is to be treated as an action in itself independent of and separate from the receivership proceedings proper, as affects venue.

6. Same--Court Without Jurisdiction to Order Stranger to Receivership Proceeding to Deliver Property to Receiver.

The court in a receivership proceeding had no jurisdiction to order a person who was not a party to the proceedings to deliver to the receiver property claimed by such persons, since such persons had a right to a judicial determination, in a proceeding to which he was a party, of the question of ownership.

7. Prohibition--Remedy to Arrest Unauthorized Action of Inferior Court.

Prohibition is a proper remedy to arrest the action of an inferior court where a proper showing has been made that such court is proceeding in a cause without authority.

Original proceeding in the Supreme Court for writ of prohibition by the First National Bank of Seminole and others against George A. Henshaw, Judge of the Thirteenth Judicial District of Oklahoma. Writ granted.

Biggers & Biggers and Robert Burns, for petitioners.

Rittenhouse, Webster & Rittenhouse, for respondent.

SWINDALL, J.

¶1 This is an original proceeding for writ of prohibition by the petitioners against the respondent, George A. Henshaw, as judge of the district court of Oklahoma county, Okla., and against said district court.

¶2 The facts giving rise to the controversy may be briefly stated as follows: That heretofore there was filed in the district court of the Thirteenth judicial district cause No. 82611 in said court, styled "Jess G. Read, Insurance Commissioner of the State of Oklahoma, v. Middle States Casualty Insurance Company of Oklahoma City, Oklahoma," wherein the plaintiff, as Insurance Commissioner of the state of Oklahoma, sought the liquidation of said company and the appointment of a receiver for its assets pending final liquidation of said company. William Murdock was duly appointed receiver therein, and is now the duly qualified and acting receiver. Thereafter, on February 6, 1934, there was filed in said cause by the receiver an application for an order directing the delivery to him of certain assets then in the possession and under the control of the First National Bank of Seminole, Okla., a banking corporation organized and existing under the laws of the United States. with its principal and only place of business located in the city of Seminole, Okla. In the application it was alleged that said receiver is informed, and therefore alleges, that the First National Bank of Seminole and W. E. Harber. as an individual or as president of said bank, were instrumental and active in the organization, management, and control of the Middle States Casualty Insurance Company of Oklahoma City, Okla., and as such were intrusted with and held in their possession and control certain securities and assets of the defendant Middle States Casualty Insurance Company. a corporation, and described in the application as two notes secured by real estate mortgages, four shares of Commonwealth Building & Loan stock, school district building bonds, township bonds, sewer bonds, and street improvement bonds, and that on January 25, 1934, and prior thereto, the Middle States Casualty Insurance Company had on deposit in said bank the sum of approximately $ 9,800, and that on said date the bank charged to the account of said defendant corporation and appropriated from said deposit held by it the sum of $ 9,592, under the claim of right so to do in satisfaction and payment of said notes held by said bank and claimed to have been indorsed by said Middle States Casualty Insurance Company, and that said receiver is informed and alleges that said action on the part of said bank and/or W. E. Harber was unauthorized. and that said receiver has requested of and made demand upon said bank and W. E. Harber for the surrender to him of said notes, stocks, and cash held and deposited with said bank or W. E. Harber, and delivery and surrender by them of said assets has been refused. The receiver then prays the court for an order directed to the said bank and W. E. Harber directing them to deliver to said receiver the securities and funds described in said application.

¶3 Upon said application the court entered an order that said bank and W. E. Harber forthwith upon receipt of said order deliver to said receiver the assets claimed by said receiver in said application, or that they appear before said district court on the 17th day of February, 1934, and show cause for their failure so to do.

¶4 The bank and Harber, appearing specially and for the purpose only of presenting a motion to quash the order, objected to the jurisdiction of said court over said defendants, and each of them, and moved the court to quash, vacate, and set aside said order for the reason that the court was wholly without jurisdiction to make and enter said order. objections to the jurisdiction of said court to make said order were. and are, that the First National Bank of Seminole, Okla., is a national banking corporation with its principal place of business at Seminole, Okla., and that the defendant W. E. Harber is president of said bank, and that said order was served upon them within Seminole county, Okla., and that the district court of the Thirteenth judicial district, therefore, has no jurisdiction over said parties in the matters and things contained in said order. Upon hearing, the court denied said special Idea. The court further found that the application of the receiver to require said bank and Harber to surrender possession of said assets to said receiver is in the nature of a petition by the receiver to recover possession of the assets described therein, and that the order of February 12, 1934, issued on said application may be considered as a summons and said application and order are so considered and treated, and the said First National Bank of Seminole, H. T. Riddle, and W. E. Harber, and each of them, are granted 10 days from the date of said order, March 12, 1934, to file an answer in said cause, to all of which rulings and action of the court the petitioners herein excepted.

¶5 The First National Bank and W. E. Harber and H. T. Riddle were not made parties in the original proceedings for the appointment of a receiver, and were strangers to the record at the time the application of the receiver for an order directing the delivery to him of said assets was filled, and are still not parties to the record unless they are made so by the order of March 12, 1934.

¶6 It is the contention of the petitioners that an action by a receiver against strangers to the receivership to determine title to property is triable in the county of the strangers' residence, and that the receiver in respect to the property in question stands in the place of the Middle States Casualty Insurance Company of Oklahoma City, Okla., and has no rights over the property that such company did not have, and that the venue in any action to recover possession of property of the kind and character involved in this action is in Seminole county, and that the district court of Oklahoma county is attempting to proceed without jurisdiction, and that the petitioners are entitled to a writ of prohibition as prayed.

¶7 It is the contention of the respondent that the district court of the Thirteenth judicial district, of which Oklahoma county, Okla., is a part, under the general order of the court appointing a receiver, was entitled to possession of the property and assets of the insurance company, and as a matter of law is and was presumed to be in possession of the same regardless of whether the property was actually located in Oklahoma county or in some other county of the state, and, further, that the district court of Oklahoma county was authorized to treat the application filed by the receiver as a petition to bring in the petitioners herein in that action and to treat the order issued by the court as a summons in said action.

¶8 Sections 109, 110, and 111 of article 2, O. S. 1931, designate the counties in which certain actions must be brought, and sections 112, 113, 114, 115, and 116 provide in what counties certain actions may be brought, and section 117 provides that'

"Every other action must be brought in the county in which the defendant or some one of the defendants resides or may be summoned"

¶9 --except actions against makers of notes...