Harris Foundation, Inc. v. District Court of Pottawatomie County

• Decision Date: 30 October 1945
• Docket Number: 31967.
• Citation: 163 P.2d 976,196 Okla. 222,162 A.L.R. 272,1945 OK 278
• Parties: HARRIS FOUNDATION, Inc., et al. v. DISTRICT COURT OF POTTAWATOMIE COUNTY et al.
• Court: Oklahoma Supreme Court

163 P.2d 976

196 Okla. 222, 162 A.L.R. 272, 1945 OK 278

HARRIS FOUNDATION, Inc., et al. v. DISTRICT COURT OF POTTAWATOMIE COUNTY et al.

No. 31967.

Supreme Court of Oklahoma

Oct. 30, 1945

Original proceeding in the Supreme Court for writ of prohibition by Harris Foundation, Inc., a corporation, V. V. Harris individually, and V. V. Harris and W. L. Missimore, as alleged co-partners, against the District Court of Pottawatomie County, State of Oklahoma, and Honorable Clyde G. Pittman, Judge of said court.

Writ granted.

Syllabus by the Court.

1. Suitors and witnesses coming from foreign jurisdictions into Oklahoma solely for the purpose of attending court, whether under subpoena or not, are immune from service of civil process while in attendance and for a reasonable time in coming and going.

2. A nonresident entitled to immunity from process, as stated in preceding paragraph of the syllabus, does not forfeit same by reason of transacting business not connected with the matter involved in such court or being in counties other than that wherein the court session is held so long as such business and such absence are subordinate to such controlling purpose of attending court, and do not enlarge the time for coming and going.

3. Where during a recess in the trial of a cause wherein a nonresident suitor is participating, such nonresident without intent to prejudice the further conduct of such trial or his participation therein, avails himself of the opportunity to go to another county solely to visit a relative of a friend and while in such county is served with process in an action therein, such service is illegal, and a summons cannot be issued thereon to any other county and there be legally served on any one or more of codefendants.

4. The issuance and service of summons upon one exempt therefrom by reason of the immunity accorded by law and the exercise by trial courts of jurisdiction predicated thereon is violative of the sovereign policy of the state in the administration of justice.

5. By Sec. 2, Art. 7 of the Constitution the Supreme Court is given jurisdiction to exercise a general superintending control over all inferior courts, and this jurisdiction is a separate and distinct grant from its appellate jurisdiction.

6. Where an inferior court is exercising unwarranted jurisdiction in violation of a sovereign policy the fact that a party litigant therein may have entered a general appearance does not prejudice the right of the state to protect the integrity of the administration of justice. The benefit to the litigant therefrom is but an incident to the exercise of power by the state, which power cannot be impaired by such appearance.

7. Prohibition is the proper remedy where an inferior tribunal assumes to exercise judicial power not granted by law, or is attempting to make an unauthorized application of judicial force, and the writ will not be withheld because other concurrent remedies exist; it not appearing that such remedies are equally adequate and convenient.

Embry, Johnson, Crowe, Tolbert & Shelton, of Oklahoma City, for petitioners.

Reily & Reily, of Shawnee, for respondents.

GIBSON Chief Justice.

This is an original proceeding for a writ prohibiting respondent from further exercising jurisdiction in cause No. 19299 in the district court of Pottawatomie county. The asserted ground upon which the writ is sought is that the process of said court directed to and served by the sheriff of Oklahoma county upon petitioners therein was issued and served without authority of law and that respondent by assuming to hear and determine such cause, is attempting to make and is making an excessive and unauthorized application of judicial force which is inimical to the sovereign policy in the furtherance of justice and depriving petitioners of the right and privilege accorded them by 12 O.S.1941 § 139, to be sued only in the county wherein they reside or may be lawfully summoned.

Beginning on April 6, a trial was had at Oklahoma City in the district court of Oklahoma county wherein Harris Foundation, Inc., a domestic corporation, whose principal and only office was in said city, was plaintiff, and Elma Coggin, resident of said city, was defendant and cross-petitioner, and W. L. Missimore, a nonresident of the State of Oklahoma, and a resident of the State of New Mexico, was codefendant. On the afternoon of the aforesaid date Elma Coggin, on her demurrer to plaintiff's evidence being sustained, was dismissed as a party defendant, and immediately thereafter she obtained an order of dismissal of her cross-petition without prejudice to another action. Thereupon the trial continued upon the issue joined between the plaintiff and defendant Missimore, and not being concluded at 5 o'clock p. m. the court recessed until 9 a. m. of the following day. At the time of the adjournment Missimore was on the stand as a witness in his own behalf, and having completed only his testimony in chief he was excused from the stand until the hour of reconvening the court. Trial was resumed at the appointed hour on the morning of the 7th, at which time Missimore again took the stand as a witness for the purpose of cross-examination and the trial was concluded on the afternoon of that day.

During the recess of the court, and on the evening of April 6, there was filed in the district court of Pottawatomie county at the office of the clerk at Shawnee, an action by said Elma Coggin as plaintiff against W. L. Missimore and V. V. Harris as copartners, W. L. Missimore, V. V. Harris and Harris Foundation, Inc., as defendants, wherein recovery is sought upon the same matter involved in her cross-petition so dismissed. And on the same occasion process thereon was issued and served on W. L. Missimore both individually and as member of such partnership in the city of Shawnee, and process was issued and directed to the sheriff of Oklahoma county for service upon the other defendants therein, which was later had. Separate motions to quash summons were filed by V. V. Harris and Harris Foundation Inc., and a plea to jurisdiction was filed on behalf of the alleged defendant copartnership by Harris. Responses to the motions and plea were made by plaintiff and depositions taken by both plaintiff and defendants in support of their respective contentions. Upon hearing, the trial court found that by reason of certain matters averred in the plea to the jurisdiction, and the scope and purpose of the evidence in depositions taken on behalf of defendants and those on behalf of plaintiff which were participated in by the defendants, the defendants entered a general appearance and the motions and plea were overruled and denied, which is made the basis of this proceeding.

Considering the situation independently of the alleged immunity of W. L. Missimore from process, divers propositions urged in the briefs and especially those presenting the respective views on the questions whether Missimore's presence at Shawnee was the result of connivance, and if so, whether general appearance was made would demand consideration. But, inasmuch as the question of immunity is involved and in our opinion is controlling irrespective of the merits of such contentions, we will make only such incidental reference to them as may be pertinent to show that we have considered such contentions.

There is no question concerning the residence and no question but what under the law the venue of such action lay in Oklahoma county and not in Pottawatomie county unless a venue was there obtained by reason of the opportunity for the service had there on Missimore. And in order to avoid the issue thereon we will for the purpose of our consideration recognize as true the contention of the plaintiff that Missimore was there solely for the purpose of visiting a youth who was a near relative of one with whom he was closely associated in business at his place of residence in New Mexico, and that he was without knowledge of any plan to serve process until same was had. With these facts as a basis and the unquestioned further fact that Missimore's presence within the state was for the specific and controlling purpose of participating in his capacity as party in said trial at Oklahoma City, thus denoting his visit to Shawnee as a mere incident arising out of the opportunity his presence in the state afforded, we can determine the law applicable and its effect upon the issue in the instant proceeding.

The controlling rule, which has received general recognition, and which has been expressly recognized by this court in Lonsdale Grain Co. v. Neil, 73 Okl. 221, 175 P. 823, 825, is as follows: 'Suitors and witnesses coming from foreign jurisdictions for the sole purpose of attending court, whether under summons or subpoena or not, are usually held immune from service of civil process while engaged in attendance and for a reasonable time in coming and going.' 32 Cyc. 492.

It is manifest from the plain language of the rule that the status of Missimore is squarely within the prescribed immunity unless same was defeated by reason of the purpose of his going to, or the fact that he was present in, Pottawatomie county during the recess of the court. Any contention that such purpose or presence could impair such immunity is foreclosed by the holding in Burroughs v. Cooke & Willis, 56 Okl. 627, 156 P. 196, L.R.A.1916E, 1170 which is reflected in paragraph (a) of the first syllabus thereof, as follows: '(a) A nonresident, who comes within the confines of this state for the purpose of attending upon the taking of dispositions to be used in the trial of a cause pending in another jurisdiction in which he is one of the litigants, is privileged from service of summons while within the state upon that business,...