Smith v. Inter-Mountain Auto Co., Ltd.

• Decision Date: 22 November 1913
• Citation: 25 Idaho 212,136 P. 1125
• Parties: W. E. SMITH, E. E. SMITH and CARL SMITH, Copartners Doing Business as SMITH BROS., Respondents, v. INTER-MOUNTAIN AUTO CO., LTD., a Corporation, Appellant
• Court: Idaho Supreme Court

136 P. 1125

25 Idaho 212

W. E. SMITH, E. E. SMITH and CARL SMITH, Copartners Doing Business as SMITH BROS., Respondents, v. INTER-MOUNTAIN AUTO CO., LTD., a Corporation, Appellant

Supreme Court of Idaho

November 22, 1913

MOTION TO DISMISS-TRANSCRIPT-CERTIFICATE-CORPORATIONS-DOMESTIC-FOREIGN-VENUE-RESIDENCE.

1. Where the transcript on appeal does not contain the proper certificate showing what papers the trial court or judge used on the hearing of the matter presented to him, and a motion is made to dismiss the appeal on that ground, and counsel for appellant asks for permission to procure the proper certificate and he is given permission to do so, and thereafter furnished the proper certificate, the appeal will not be dismissed on that ground.

2. Foreign corporations that have complied with the constitution and laws of this state in regard to doing business in this state have all the rights and privileges of domestic corporations, under the provisions of sec. 2792, Rev. Codes.

3. Boyer v. Northern P. Ry. Co., 8 Idaho 74, 66 P. 826, 70 L.R.A. 691, cited and approved.

4. A domestic corporation under our statutes has not the absolute right to have all actions brought against it tried in the county where its principal place of business is located.

5. Where an action is brought against a domestic corporation in the county where the contract on which the action is based was made, the corporation has no absolute right under our statutes to have the venue of such action changed to the county wherein is located the principal place of business of such corporation.

APPEAL from the District Court of the Fourth Judicial District in and for Lincoln County. Hon. Edward A. Walters, Judge.

Action to recover commissions for the sale of certain automobiles. Motion for a change of venue denied. Affirmed.

Action of the trial court is denying the motion affirmed. Costs of this appeal awarded to the respondents.

Pence &amp Koelsch, for Appellant.

The cause of action is not of a local nature and not one of those the place of trial of which is specifically fixed by the statutes, and so "the action must be tried in the county in which the defendant . . . . resided at the commencement of the action." (Sec. 4123, Rev. Codes; Jenkins v California Stage Co., 22 Cal. 538.)

Sec. 20 of the practice act of 1858 of California is now sec. 395 Code of Civil Procedure of California, and is verbatim with sec. 4123 of our Revised Codes excepting from the latter the proviso. The case of Jenkins v. Stage Company had been decided before the adoption of this statute from California by Idaho, so that the construction placed on the statute was adopted with it. (Cohn v. Central Pacific R. Co., 71 Cal. 488, 12 P. 498; Buck v. Eureka, 97 Cal. 135, 31 P. 845; Waechter v. Atchison T. & F. R. Co., 10 Cal.App. 70, 101 P. 41; Bloom v. Michigan Salmon Min. Co., 11 Cal.App. 122, 104 P. 325.)

Utah also adopted sec. 395 of the California Code of Civil Procedure and with it the construction placed thereon by California in Jenkins v. California Stage Co. (See, also Crookston v. Centennial Eureka Min. Co., 13 Utah 117, 44 P. 714; Southwestern R. R. Co. v. Paulk, 24 Ga. 356; Central Bank of Georgia v. Gibson, 11 Ga. 453; Rossie Iron Works v. Westbrook, 59 Hun, 345, 13 N.Y.S. 141.)

"The residence of a corporation is deemed to be in the county where it has its principal office or place of business." (Holgate v. Oregon P. R. Co., 16 Ore. 123, 17 P. 859; Galveston etc. R. Co. v. Gonzales, 151 U.S. 497, 14 S.Ct. 401, 38 L.Ed. 248; 1 Clark & Marshall on Corporations, sec. 116; 40 Cyc. 39, 40.)

W. G. Bissell, for Respondents.

"A corporation, whether foreign or domestic, having a general residence in the state for the purpose of jurisdiction, is deemed to reside throughout the entire limits of the state and especially in those counties where it carries on its business and exercises its franchises, and is hence suable in any county where it has an agent upon whom process against it may lawfully be served." (Boyer v. Northern P. R. Co., 8 Idaho 74, 66 P. 826, 70 L. R. A. 691.)

The certificate referred to in this case is identical in its essential point with that presented in the record of Village of Sandpoint v. Doyle, 9 Idaho 236, 74 P. 861, and the court has held in unequivocal language that such identification is not sufficient. (See, also, Kootenai County v. Hope Lumber Co., 13 Idaho 262, 89 P. 1054.)

A proper certificate filed after the hearing comes too late, but it might have been granted, if presented, in the original hearing. (Steve v. Bonner's Ferry Lumber Co., 13 Idaho 384, 392, 92 P. 363. See, also, Hall v. Jensen, 14 Idaho 165, 93 P. 962; Doust v. Rocky Mountain Bell Tel. Co., 14 Idaho 679, 95 P. 209; Knutsen v. Phillips, 16 Idaho 267, 101 P. 596; Johnston v. Bronson, 19 Idaho 449, 114 P. 5; Medbury v. Maloney, 12 Idaho 634, 88 P. 81.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This action was brought in Lincoln county to recover commissions for the sale of three automobiles under a written contract made in said county. The defendant, the Inter-Mountain Auto Company, is a domestic corporation, with its principal place of business in Boise City, Ada county. After the service of summons, the defendant appeared and filed a demurrer to the complaint, and also a motion for a change of venue, basing said motion on the fact that the residence of said auto company was in Ada county. Said motion was supported by an affidavit showing the facts in regard to the residence of defendant. The motion was denied and this appeal is from the order denying the motion.

1. A motion has been filed in this court to dismiss this appeal on the ground that there is no certificate to the record showing what papers were considered by the trial court in deciding said motion for a change of venue. On the hearing counsel for appellant suggested a diminution of the record and time was given him to furnish the proper certificate from the judge who decided said motion. Thereafter the proper certificate was filed.

On the authority of Steensland v. Hess, ante, p. 181, 25 Idaho 181, 136 P. 1124, decided at the present term of this court, the motion to dismiss must be denied.

2. The next question presented for decision is: Did the court err in denying said motion for a change of venue, made upon the ground that appellant's principal place of business is in Ada county?

It is contended by counsel for appellant that this cause of action is not a local one and not one of those the place of trial of which is specifically fixed by the statute, and that "the action must be tried in the county in which the defendant . . . . resided at the commencement of the action." (Sec. 4123, Rev. Codes.)

Counsel for appellant most earnestly...