Fisher v. Fiske

• Decision Date: 24 July 1923
• Docket Number: Case Number: 14162
• Parties: FISHER et al. v. FISKE.
• Court: Oklahoma Supreme Court

1923 OK 524

219 P. 683

96 Okla. 36

FISHER et al. v. FISKE.

Case Number: 14162

Supreme Court of Oklahoma

Decided: July 24, 1923

Syllabus

¶0 Venue--Action Against Joint Defendant--Jurisdiction of Nonresidents--Effect of Failure of Action Against Resident Defendants.

Sections 207 and 234, Comp. Stats. 1921, create an exception to the general rule that a defendant may be sued only in the jurisdiction of his residence. But, in order to give the court jurisdiction over joint defendants who are nonresidents of the county where the suit is brought and for whom summons has been issued to another county, the averments of the petition and the proof on the trial must show that the plaintiff has a valid joint cause of action against the resident defendants on whom valid service is had as well as against the nonresident defendants.

Record examined, and held, the action having failed as to the resident defendants, the action, on the motion of the non-resident defendants, should have been dismissed.

Error from District Court, Tulsa County; Redmond S. Cole, Judge.

Action by Melba Fiske against Roy Fisher et al. to recover damages for personal injuries received in automobile accident. Judgment for plaintiff for $ 12,500, and defendants bring error. Reversed and remanded, with directions.

Stanley, Stanley & Hiebsch, Everest, Vaught & Brewer, and Warren K. Snyder, for plaintiffs in error.

Samuel A. Boorstin, J. D Johnston, and Robinett & Ford, for defendant in error.

KENNAMER, J.

¶1 On the 4th day of February, 1922, Melba Fiske, plaintiff, commenced this action in the district court of Tulsa county against J. W. Fisher, Roy Fisher, and John R. Boling, and others not material in this appeal. The action was to recover for damages alleged to have resulted from injuries received in an automobile accident on the night of June 29, 1921, on Federal Drive near the city of Tulsa. It was alleged by the plaintiff that while riding in a Mercer car, which the defendant Roy Fisher was driving at his request, the said Roy Fisher engaged in a race with defendant Boling, who was driving a Mercer car, and that through the fault and negligence of said defendants in racing, the car in which plaintiff was riding ran into another car parked on the side of the road, which caused said car to be ditched, thereby striking a culvert, and as a result the plaintiff was thrown against the front of the car into and against the wind shield, causing serious injuries to the plaintiff.

¶2 Roy Fisher is the son of J. W. Fisher, and was at the time employed by his father to sell cars, receiving a commission on cars sold by him. Boling was a resident defendant of Tulsa county and therein served with summons.

¶3 The Fishers were both residents of Oklahoma county and served with summons in said county and by motion to quash the summons and otherwise, defendants Fisher challenged the jurisdiction of the court over them. The jury returned a verdict in favor of plaintiff for $ 12,500 against the Fishers, but found in favor of Boling. This appeal is prosecuted by the Fishers to reverse the judgment.

¶4 It is argued by counsel for the Fishers that, because of the fact that the action having failed as against Boling, the court had no jurisdiction over them. This, we believe, is not necessarily true. We are aware that ordinarily the jurisdiction of a local court cannot be extended to persons outside of its territorial jurisdiction. This is a declaration of that old common-law principle that a man must be sued in the jurisdiction of his residence. However, to this rule there are exceptions One of these is contained in the statutory provisions that permit, in certain instances, where one of the defendants resides in the jurisdiction that persons nonresident of the territory may be joined. These statutes read as follows (Comp. Stats. 1921):

Sec. 207. "Every other action must be brought in the county in which the defendant or some one of the defendants resides or may be summoned; except action against makers of notes, claims, or other indebtedness which have been assigned, sold or transferred by or from the original payee or obligee, which actions against such original maker of such notes, claims or indebtedness can only be brought in the county in which the said maker of such note, claim or indebtedness or some one of the original makers of such note, claim or indebtedness resides. Provided, however, this section shall not in any way change or limit section 4671 of the Revised Laws of Oklahoma, 1910."

Sec. 234. "Where the action is rightly brought in any county, a summons shah be issued to any other county against any one or more of the defendants, at the plaintiff's request."

¶5 Thus, where an action has been rightfully commenced against a resident, and it appears that a nonresident is a proper party to the action brought, that the nonresident has a substantial interest in that action, an interest which must necessarily be adjudicated in the type of action rightfully brought against the resident; then, and in that case, summons may issue to the nonresident and he may be brought into the case as a proper party. It is settled beyond the necessity of citing authority therefor that a plaintiff has an absolute right to sue joint tort-feasors, either jointly or severally. And where he elects to sue them jointly, it is necessary and proper to the class of action brought that all the tort-feasors be brought in.

¶6 But, on the other hand, every defendant having an inherent right to be sued where he lives, the exceptions must be strictly applied, so as not to abort their limited purpose. So, where it is determined that the resident defendant is not jointly liable in the action, the court loses its jurisdiction over the nonresidents, the jurisdiction over them being primarily predicated upon the liability of the resident defendant. Mr. Justice Sharp, in the case of Haynes v. City National Bank, 30 Okla. 614, 620, 121 P. 182, laid down the rule as follows:

"Before a summons can rightfully issue from one county to another, the person served with summons in the county in Which the action is brought must have a real and substantial interest in the subject of the action adverse to the plaintiff and against whom some substantial relief may be obtained, and the action

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