Myers v. Garland

• Decision Date: 23 November 1926
• Docket Number: 17811.
• Parties: MYERS v. GARLAND et al.
• Court: Oklahoma Supreme Court

251 P. 34

122 Okla. 71, 1926 OK 935

MYERS v. GARLAND et al.

No. 17811.

Supreme Court of Oklahoma

November 23, 1926

Syllabus by the Court.

A bill in equity, filed by one member of an alleged partnership against another member thereof, for a declaration of the partnership and for an accounting, in which it is charged that certain property was and is partnership property, is a transitory action, and the venue thereof is governed by section 207, C. O. S. 1921; and this is true, even if an estate in real property is by the bill drawn in question, the plaintiff pleading that the estate in the real property belongs to the partnership as such. Such allegations, if traversed by the defendant in a court of competent jurisdiction, would form an issue for trial as an incident to the primary relief prayed in the bill, to wit, the declaration of the partnership, the determination of its assets, and the accounting as between the members thereof.

Appeal from District Court, Seminole County; Wyley Jones, Judge.

Suit by F. F. Myers against R. F. Garland and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Twyford & Smith, of Oklahoma City, for plaintiff in error.

Disney Wheeler & Alcorn and West, Gibson, Sherman, Davidson & Hull all of Tulsa, Willmott, Roberts & Looney, of Wewoka, and T J. Flannelly and Paul B. Mason, both of Independence, Kan for defendants in error.

BRANSON V. C.J.

Error is prosecuted herein from the district court of Seminole county, The plaintiff in error is one F. F. Myers; the defendants in error are R. F. Garland, the Sinclair Crude Oil Purchasing Company, a corporation, Oklahoma Pipe Line Company, a corporation, Gulf Pipe Line Company, a corporation, Carter Oil Company, a corporation, and Prairie Oil & Gas Company, a corporation. Judgment was rendered against the plaintiff. A plea to the jurisdiction was interposed by the defendant Garland by special appearance for that purpose only, on the ground that the action brought by the plaintiff was transitory, and that service was had upon the defendant Garland in Tulsa county, Okl. This plea being sustained, plaintiff's petition was dismissed. This action on the part of the trial court is alleged as error. The other defendants named were made parties for ancillary relief, to wit, receivership.

The defendant, against whom substantial relief is prayed, is R. F. Garland. The question here is venue. The trial court held that the venue was not in the district court of Seminole county, but that the same was governed by section 207, C. O. S. 1921, which is a part of the chapter on "Procedure Civil" and particularly on "Venue." Section 199, C. O. S. 1921, and subsequent sections determine the venue in the character of the causes of actions therein referred to. The said section 207 provides:

"Every other action must be brought in the county in which the defendants * * * resides or may be summoned." It is the contention of the defendant that the action here in question does not fall within any of the other provisions of the statute governing venue, and is therefore within the general provisions of the said section 207 as quoted above, and particularly, he asserts, that the instant case is a personal action, and must be brought in the county in which the defendant Garland resides or may be summoned.

We deem it unnecessary to engage in an extended discussion of the venue statutes. There is before us in this case nothing except the plaintiff's petition, the fact that it was filed in the district court of Seminole county; that service was made on defendant in Tulsa county, and the plea to the jurisdiction of the defendant. We must determine from these alone whether plaintiff pleads a personal action and therefore one the venue of which is governed by the said section relied upon by the defendant.

The plaintiff, as is within his right, makes his allegations as to the formation of the alleged partnership and his allegations as to the defendant's relation thereto and his conduct as to the alleged partnership. They constitute his first pleading, his petition. Whether the forum chosen by him was the correct forum must be determined by these allegations. They are binding upon him in determining the question of venue on the motion of the defendant presented to the trial court. There is no means known to our system of pleading except that plaintiff's theory of his cause of action or bill must be determined by a construction of the allegations the plaintiff inserts or causes to be inserted therein, where there is nothing except the pleadings before the court. Such allegations are the written information, both to the parties against whom they are directed and to the court, and by them alone must be determined any issue as to jurisdiction.

Necessarily, therefore, both the trial court had to determine, and this court must determine, the character of action filed by plaintiff in the district court of Seminole county, and that must be from his petition. We deem it unnecessary to quote it in toto. There are certain paragraphs contained therein, which, as we view them, show conclusively the nature of the action, its objects, and its purpose. Omitting the formal parts, it charges in substance:

"That in November 1925, at Tulsa, Okl., the plaintiff and the defendant Garland entered into a verbal partnership contract and agreement, whereby they became partners for the purpose of acquiring and developing oil and gas mining leases, and to produce oil and gas in the state of Oklahoma and elsewhere; that the expenses and profits were to be shared equally, and that the plaintiff put into said partnership a large amount of acreage of oil and gas mining leases in Harper county, Kansas; that the partnership as such acquired oil and gas mining leases upon the south half of the northeast quarter of section 26; the southwest quarter of the southwest quarter of section 26, the southwest quarter of the southwest quarter of section 23, the southeast quarter of the southwest quarter of section 27, all in township 9 north range 6 east of the Indian base and meridian, Seminole county, Okl. (the land thus described will be referred to as the Seminole lease-ours); that the

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