Shelby-Downard Asphalt Co. v. Enyart
| Decision Date | 29 January 1918 |
| Docket Number | 8051. |
| Citation | 170 P. 708,67 Okla. 237,1918 OK 50 |
| Parties | SHELBY-DOWNARD ASPHALT CO. v. ENYART. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
No one has a vested right in any particular mode of procedure for the enforcement or defense of his rights. Hence the general rule that statutes will be construed to be prospective only does not apply to statutes affecting procedure; but such statutes, unless the contrary intention is clearly expressed or implied, apply to all actions falling within their terms whether the right of action existed before or accrued after the enactment.
The court under the provisions of section 4674, Rev. Laws 1910 dismissed a suit filed in Osage county on the ground that under that statute it had been brought in the wrong venue but subsequently, and while the right of action still survived, that section of the statute was so amended as to make Osage county the proper venue of the action, and another suit was then filed declaring upon the same cause of action, in that same county, and the court under this amended, act assumed jurisdiction of the case. Held, this was not res adjudicata, since under these conditions in passing upon the motion to dismiss in the last case filed, the court had an entirely different question before it to that passed upon in the motion to dismiss in the former case.
Where a petition states both a statutory and common-law cause of action, growing out of the same transaction, in one count, this is a defect that may be remedied on motion, but cannot be reached by demurrer.
Error from District Court, Osage County; R. H. Hudson, Judge.
Action by Lee Enyart against the Shelby-Downard Asphalt Company. Judgment for plaintiff and defendant brings error. Affirmed.
Robert Stuart and Grinstead & Scott, all of Pawhuska, for plaintiff in error.
Elmer J. Black and Leahy & MacDonald, all of Pawhuska, for defendant in error.
The facts in this case briefly stated are that the plaintiff in error, the Shelby-Downard Asphalt Company, was a domestic corporation with its domicile and principal office at Ardmore, Carter county, Okl. In the early part of 1912 this corporation was doing some contract work in Osage county, Okl. On the 16th day of March, of that year, the defendant in error, who was one of its employés, and was operating one of its machines, received severe personal injuries. He afterwards instituted an action for damages against the Shelby-Downard Asphalt Company in the district court of Osage county, and caused summons to issue to the sheriff of Carter county and to be served upon it at its office in Ardmore. The company made special appearance, and moved to quash the service on the ground that the court of Osage county had no jurisdiction to maintain an action on the service made in Carter county. This motion was by the court sustained, and the action dismissed without prejudice. On August 7, 1912, the defendant in error filed another action against the Shelby-Downard Asphalt Company and the city of Pawhuska and one L. A. Arms in the district court of Osage county by which he sought to recover damages for the same injuries sued for in the first action, and service was again made on the Shelby-Downard Asphalt Company in Carter county. The company made special appearance, and again objected to the jurisdiction of the court over it upon such service, and further setting out that the defendants, the city of Pawhuska and L. A. Arms, were not proper parties defendants, but were such for the purpose of attempting to give the court in Osage county jurisdiction of the action. Plaintiff dismissed as to the city of Pawhuska and took issue upon Arms being a fictitious defendant, and testimony was taken by the court upon this issue, and upon the testimony the court found that Arms was a fictitious defendant, and was made a defendant for the purpose and object of giving the court jurisdiction, and sustained the motion to quash summons, and dismissed the cause without prejudice. The plaintiff excepted to the ruling, and afterwards filed a motion for a new trial, which was overruled, and the court gave him 90 days to make and serve case-made for appeal to the Supreme Court. An appeal, however, was not perfected, and the judgment became final. On the 3d day of January, 1914, plaintiff again filed suit in the district court of Osage county upon the same cause of action, and had summons issued to the sheriff of Carter county and service made in Carter county. The defendant again made a special appearance in the case, and objected to the jurisdiction of the court, and moved to quash service. This motion was by the court overruled, and the Shelby-Downard Asphalt Company saved exceptions to the ruling, and then interposed a demurrer to the petition, which was overruled. The defendant then filed its answer, and the cause was tried to the court and a jury, and judgment rendered for the plaintiff. This judgment is brought to this court for review by petition in error and case-made.
1. The trial court in sustaining the motion to quash the service made in Carter county in the first and second suits did so upon the authority of section 4674, Rev. L. 1910, and held that under section 4674, Rev. L. 1910, the defendant being a domestic corporation, had a right to insist that the action be brought in the county of its domicile, where its principal office and place of business was located, or in the county where its principal officer resides, or may be summoned. And in overruling the motion in the third suit the court took the view that the amendment of this statute by the act approved March 22, 1913 (Session Laws of 1913, p. 133) controlled, and permitted the action to be maintained in Osage county because the cause of action arose there. This amendment reads as follows:
"An action, other than one of those mentioned in first three sections of this article, against a corporation created by the laws of this state, may be brought in the county in which it is situated, or has its principal office or place of business, or in which any of the principal officers thereof may reside, or be summoned, or in the county where the cause of action or some part thereof arose."
The plaintiff in error insists that this amendment could not apply to a cause of action that had accrued and was already in existence at the time the amendment went into effect, but was applicable only to such causes of action as accrued after March 22, 1913, the date upon which the amendment became effective. But with this contention we do not agree. For this amendment deals with procedure only, and no one has a vested right in any particular mode of procedure for the enforcement or defense of his rights. Hence, as stated in Clark v. K. C., St. L. & C. R. Co., 219 Mo. 524, 118 S.W. 41:
"Where a new statute deals with procedure only prima facie it applies to all actions-those which have accrued or are pending as well as future actions."
And again in that opinion it is said:
"The general rule that statutes will be construed to be prospective in operation does not apply to statutes affecting procedure or a legal remedy."
In Hennepin County v. Baldwin, 62 Minn. 518, 65 N.W 80, the Supreme Court of Minnesota holds that a statute which does not...
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