Graham v. Mid-Continent Coaches, Inc.
| Decision Date | 16 October 1956 |
| Docket Number | MID-CONTINENT,No. 37405,37405 |
| Citation | 302 P.2d 777 |
| Parties | W. M. GRAHAM and Lucy Graham, his wife, Plaintiffs in Error, v.COACHES, Inc., a corporation, Tommy Leo Noble and Billy Downey, and Highway Insurance Underwriters, a Casualty Reciprocal Insurance Exchange, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
If service of summons is not legally obtained on one of several defendants in the county where the action is brought, a summons cannot be issued thereon to any other county and there be legally served on any one or more of the codefendants.
Appeal from the Superior Court of Seminole County; Bob Aubrey, Judge.
Action for damages wherein trial court sustained defendants' plea of no jurisdiction and dismissed action and plaintiffs appeal. Affirmed.
Bishop & Samples, Seminole, for plaintiffs in error.
Foliart, Hunt & Shepherd, Oklahoma City, for defendants in error.
Plaintiffs sued the named defendants in the Superior Court of Seminole County, seeking to recover damages for the wrongful death of their son as the result of an automobile accident. The petition alleged plaintiffs were residents of Canadian County, and that the principal defendant was the operator of vehicles carrying passengers for hire within this state, and in Canadian County; on June 22, 1952, a collision occurred in Canadian County between defendants' bus, operated by defendant Noble and insured by the defendant insurer, and an automobile driven by the defendant Downey in which plaintiffs' decedent was a passenger; such collision and decedent's death were the direct and proximate result of various concurring and commingled acts of negligence on the part of defendants.
Upon this petition summons issued from Superior Court to defendant Downey, directed to the sheriff of Canadian county. Service of such summons was made upon this defendant's attorney. The back of the summons bore the following endorsement: Thereafter the remaining defendants were served by summons issued by the court clerk of Seminole county as follows: the principal defendant and the insuring defendant by summons directed to and served by the sheriff of Oklahoma county; upon the defendant Noble by personal service executed by the sheriff of Kiowa county.
Thereafter each defendant, except defendant Downey, filed separate pleas of no jurisdiction over person or property of such defendant, or venue of the action. The principal defendant's plea of no jurisdiction set forth that plaintiffs were residents of Canadian county where the cause of action arose, and that defendant did not operate within or have an agent within Seminole county, nor was any person upon whom service of summons authorized by law to be had upon defendant resident of such county. The separate pleas and motion to quash filed by other defendants were to the same effect.
After consideration of the pleas of no jurisdiction and motion to quash the trial court entered order and judgment sustaining the motions and dismissing the action for lack of jurisdiction over the person of each named defendant. Although the defendant Downey made no appearance, no default judgment was sought against him, and he is not a party to the appeal.
Plaintiffs seek reversal of the trial court's order and judgment upon the basis of two statutory provisions hereafter quoted.
12 O.S.1951 § 154.--'Summons may issue to other county.--Where the action is rightly brought in any county, a summons shall be issued to any other county against any one or more of the defendants, at the plaintiff's request.'
12 O.S.1951 § 162.--'Acceptance of service and voluntary appearance.--An acknowledgement on the back of the summons, or the voluntary appearance of a defendant, is equivalent to service.'
Plaintiffs urge that this action was instituted properly, legal service was had upon defendant Downey, and thereafter upon the other defendants in various counties, thereby investing the trial court with jurisdiction over all parties to the action. The argument by which plaintiffs seek to support such conclusion may be summarized in the following manner.
This court heretofore has had no occasion to apply section 162, supra, to a fact situation such as here presented. However, this statute was taken in toto from the general statutes of the State of Kansas, in which jurisdiction the statute has been applied several times, and such pertinent decisions should be persuasive herein. Plaintiffs then cite five decisions from the Supreme Court of Kansas which would indicate that, if only the language quoted by plaintiffs be considered, the Kansas Court recognizes the meaning of the statute to be as contended for by plaintiffs.
Examination of the cited cases obviates the necessity for citation...
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Atchison, T. & S. F. Ry. Co. v. Superior Court of Creek County, Drumright Division
...that literally construed, the suit must be brought in one of the counties where the land is located. * * *' In Graham v. Mid-Continent Coaches (Okl.), 302 P.2d 777, 779, we said: 'No extended discussion concerning the venue of actions is necessary in disposition of this matter. Our statutes......
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Hiner v. Hugh Breeding, Inc., 38829
...can be served with summons. 12 O.S.1941, § 139.' Ordinarily, venue is controlled by residence of the parties. In Graham v. Mid-Continent Coaches, Inc., Okl., 302 P.2d 777, 779, this court said: '* * *. Our statutes make explicit provisions, fixing the venue of actions. 12 O.S.1951, §§ 131-1......
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Price v. Mize
...was given. AFFIRMED. All the Justices concur. 1 Appellant relies on Jones v. Brown, 516 P.2d 546 (Okl.1973); Graham v. Mid-Continent Coaches, 302 P.2d 777 (Okl.1956).2 It is provided by 12 O.S.Supp.1978 § 142:The venue of civil actions for the collection of an open account, a statement of a......
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State ex rel. Otjen v. Mayhue
...executor is in the same category as an individual and entitled to be sued in the county of his residence, citing Graham v. Mid-Continent Coaches, Inc. et al., Okl., 302 P.2d 777. Even should § 252, supra, be considered a venue statute same was repugnant to, and was superseded by 12 O.S.1961......