Jarvis v. Hamilton
| Decision Date | 01 July 1952 |
| Docket Number | No. 7850,7850 |
| Parties | , 33 A.L.R.2d 910 JARVIS v. HAMILTON et al. |
| Court | Idaho Supreme Court |
Stephen Bistline, Sandpoint, for appellant.
Bandelin, Bandelin, & Ponack, Sandpoint, Clements & Clements, Lewiston, for respondents.
An action was filed by the plaintiff, hereinafter referred to as appellant, against the defendants, hereinafter referred to as respondents, in the District Court of Bonner County, Idaho, to establish a partnership, declare a breach, damages for breach, seeking an accounting and dissolution, and asking also in the prayer for a decree awarding possession of all the partnership property, alleged to consist of both real and personal property located in Bonner County, to appellant, for the agreed term of the partnership, upon payment to respondents of the value of their respective interests in the partnership at the date of dissolution.
A demand for change of venue was made to have the action tried in Nez Perce County, Idaho, the alleged place of residence of the respondents; the matter was heard upon affidavits and oral testimony, and an order made changing the place of trial from Bonner County, in the Eighth Judicial District, to Nez Perce County, in the Tenth Judicial District of the State of Idaho.
From the order changing the place of trial this appeal is taken.
Appellant first urges that the action is for the recovery of real property situate in Bonner County, Idaho, or an estate or interest therein, or for the determination in some form of such right or interest, and that the action is not transitory, but local, and must be tried in Bonner County under the provisions of Sec. 5-401, Idaho Code.
Respondents contend that the action is not for the recovery of real property or any interest therein, or for the determination of any right or interest in real property in any form within the meaning of the venue statutes; that the action is transitory and the venue is governed by the provisions of Sec. 5-404, Idaho Code, and hence must be tried in Nez Perce County, where the defendants resided at the commencement of the action, and where they still reside.
Generally, the proper venue of an equity action for the establishment, dissolution and settlement of the partnership affairs is determined by the residence of the parties and not by the locality of the firm assets, even when such assets include real property. Miller v. Howell, Tex.Civ.App. 234 S.W.2d 925; Replogle v. Neff, 176 Okl. 333, 55 P.2d 436; Myers v. Garland, 122 Okl. 71, 251 P. 34; Woolley v. Shaw, 192 Okl. 107, 136 P.2d 398; 68 C.J.S., Partnership, § 412, page 935.
To determine when an action is local or transitory within the meaning of the venue statutes, it is necessary to determine its nature as disclosed by the pleadings and the scope of the judgment which might be entered. Kaluzok v. Brisson, 27 Cal.2d 760, 167 P.2d 481, 163 A.L.R. 1308; Turlock Theatre Co. v. Laws, 12 Cal.2d 573, 86 P.2d 345, 120 A.L.R. 786; Miller v. Howell, supra.
The appellant alleges the existence of a partnership, the breach thereof by the respondents, seeks damages for such breach, asks for an accounting and dissolution, and seeks further relief in the prayer by asking the court to decree that he be awarded possession of all the partnership property during the balance of the agreed term upon payment to respondents of the value of their respective interests in the partnership at the date of dissolution. This latter relief is sought under the provisions of the Uniform Partnership Act, Sec. 53-338, Idaho Code.
We have examined the allegations of the appellant's complaint and construed them so as to harmonize such allegations, as far as possible, and have searched for the primary and principal rights asserted and the primary relief sought; as a result of such examination we must construe the action as one in equity, having for its primary purpose the adjudication of the creation of the partnership, its breach, damages for breach, a declaration of dissolution, and for an accounting; if the court, upon hearing on the merits, determines that a partnership exists, it will proceed to determine the partnership debts, if any, and order them paid out of the partnership assets, and proceed to determine and adjust the rights and equities among the partners; if necessary, the court would also determine any title questions to a proper winding up of the partnership affairs; this may, incidentally, require the disposition of properties located out of the county where the action is tried; if this should be necessary it would be incidental to the primary purpose of the action as above outlined. The relief as among the partners as to the real property is incidental to the equitable relief relating to the determination of the primary partnership issues as alleged in the complaint. Venue in such a case would be controlled by the primary rights asserted and the principal relief sought; it would not be controlled by the incidental purposes. Such an action, except, perhaps, in instances where unusual circumstances arise, is transitory, an action in personam and not in rem, and not governed by the rules of venue which relate to local actions. Miller v. Howell, supra; Woolley v. Shaw,...
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Andre v. Morrow, 14843
...unfortunately will add to that confusion. Proper venue is given an exhaustive treatment by Justice Thomas in Jarvis v. Hamilton, 73 Idaho 131, 246 P.2d 216, 33 A.L.R.2d 910 (1952). B. While it is true that the Morrows' brief did cite Banbury, supra, it was cited in connection with argument ......
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Chavez v. State, 5119
...States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), reh. den. 251 U.S. 380, 40 S.Ct. 176, 64 L.Ed. 317 (1920); Jarvis v. Hamilton, 73 Idaho 131, 246 P.2d 216 (1952); Edwards v. State, 9 Okl.Cr. 306, 131 P. 956 As stated in Collins v. State, supra, 589 P.2d at 1289: " * * * Even if any ju......
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Summers v. Martin, 8357
...of conveyance to lands situate in another state. Idaho Gold Min. Co. v. Winchell, 6 Idaho 729, 59 P. 533; Jarvis v. Hamilton, 73 Idaho 131, 246 P.2d 216, 33 A.L.R.2d 910; Promis v. Duke, 208 Cal. 420, 281 P. 613; Tully v. Bailey, 46 Cal.App.2d 195, 115 P.2d 542; Bailey v. Tully, 242 Wis. 22......
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McNulty v. Heine, Civ. No. 8351.
...Pl. & Pr., sec. 318; and venue is determined by the residence of the parties, not the situs of partnership assets, Jarvis v. Hamilton, 1952, 73 Idaho 131, 246 P.2d 216; Haverly v. Haverly, 1949, 326 Mich. 384, 40 N.W.2d 194; 33 A.L.R.2d 914; 68 C.J.S., Partnership, § 412, p. This court cann......