State ex rel. American Flyers Airline Corp. v. Superior Court of Creek County, Bristow Division

• Decision Date: 20 June 1967
• Docket Number: No. 42378,42378
• Citation: 435 P.2d 131
• Parties: STATE of Oklahoma ex rel. AMERICAN FLYERS AIRLINE CORPORATION, Petitioner, v. The SUPERIOR COURT OF CREEK COUNTY, State of Oklahoma, BRISTOW DIVISION, and the Honorable G. B. Chuck Coryell, Judge thereof, Respondent.
• Court: Oklahoma Supreme Court

Page 131

435 P.2d 131

1967 OK 144

STATE of Oklahoma ex rel. AMERICAN FLYERS AIRLINE

CORPORATION, Petitioner, v. The SUPERIOR COURT OF CREEK COUNTY, State of Oklahoma,

BRISTOW DIVISION, and the Honorable G. B. Chuck

Coryell, Judge thereof, Respondent.

No. 42378.

Supreme Court of Oklahoma.

June 20, 1967.

Rehearing Denied Nov. 7, 1967.

Syllabus by the Court

In a prohibition proceeding in which venue is challenged because laid on the basis of the residence within the county of a co-administrator whose appointment is asserted as void, this court must presume, where the record is silent, that the county court had inquired into and found the existence of all facts necessary to give it jurisdiction to make the appointment in question.

Petition for writ prohibiting the lower court from entertaining a wrongful death action for lack of venue. Writ denied.

Ben L. Burdick, Crowe, Boxley, Dunlevy, Thweatt, Swinford & Johnson, Oklahoma City, Phillip D. Bostwick, Shaw, Pittman, Potts, Trowbridge & Madden, Washington, D.C., for petitioner.

Browne & Arthurs, Cushing, Arthurs, Blackstock & McMillan, Bristow, for respondent.

McINERNEY, Justice.

The object of this original proceeding, instituted here by American Flyers Airline Corporation (Airline), is to prohibit the Superior Court of Creek County from entertaining the cause in which Airline is sued by co-administrators of a deceased passenger, a citizen of Colorado, for wrongful death and conscious pain and suffering, as well as for loss of personal property. The passenger died in a crash which took place in Carter County. Co-administrators were appointed and qualified by the County Court of Creek County. The probate jurisdiction of that court was invoked on the assumption that since decedent's sole asset (cause of action for wrongful death) had no fixed situs, the terms of 58 O.S.1961 § 5, sub-div. 5, apply to lay venue in the county where 'application for letters is first made'. At the basis fo the controversy before us lies a venue question. Venue of the wrongful death action was laid in Creek County on the basis of 18 O.S.1961 § 471. The terms of that statute provide that a tort action against a foreign corporation doing business in Oklahoma may be brought, inter alia, in the county 'where the plaintiff resides'. Airline is a Texas corporation which transacts business in Oklahoma; one of decedent's co-administrators is a citizen of Texas and the other a resident of Creek County. 'A co-administrator is both a 'party' and a 'plaintiff' and the statutory provisions applicable to an individual plaintiff are also applicable to a co-administrator.' Lane v. Hughes, Okl., 408 P.2d 281.

Airline's challenge to venue was initially presented to the court sought to be prohibited. It was there denied. The gist of that challenge lies in the argument that the letters of administrators by the County cedent's co-administrators by the County Court of Creek County are void on the face of the proceedings and there is hence a fatal absence of the requisite party-plaintiff who is a resident of the forum county. The invalidity of co-administrators' appointment is sought to be predicated on the proposition that in case of a non-resident decedent '* * * the existence within the county of property belonging to the estate of the decedent is the foundation of jurisdiction for the grant of administration by the probate court.' Airline argues that failure of the county court to find (in the order appointing co-administrators) that the non-resident decedent left property in Creek County operates to render the entire probate a nullity. We are urged such finding was necessary because venue for probate of the estate of a non-resident decedent must under 58 O.S.1961, § 5, sub-div. 2, be laid in the First instance in the county where he died, if he leaves an estate therein; but if he should leave no estate in the county where he dies, Then in the county 'in which any part of the estate may be' (58 O.S.1961, § 5, sub-div. 4); that Only if No venue can be laid in the county where the non-resident decedent dies, leaving an estate in more than one other county, may the terms of 58 O.S.1961, § 5, sub-div. 5; §§ 6 and 7 be properly invoked. The last cited provisions authorize the granting of letters of administration by the county court 'of that county in which application is first made * * *' and operate to vest in such court 'exclusive jurisdiction' to settle the estate.

Airline additionally argues that the cause of action for wrongful death, even if it may be regarded as an 'estate', cannot have a situs in Creek County because it neither arose in that county nor is it enforceable there. In support of this contention Airline cites cases it regards as authority (in other jurisdictions) for the rule that '* * * where the only asset in the estate was a probable cause of action for wrongful death, that asset existed only in the county where the cause of action arose--the county where the death occurred.' We are urged that '(I)f any County Court in Oklahoma has probate jurisdiction in this case, it would be the County Court of Carter County, the County where decedent sustained his injuries and where death occurred.'

Airline concedes its challenge here is futile unless the probate proceedings which culminated in the appointment of decedent's co-administrators are void on their face. This is a collateral attack. May v. Casker, 188 Okl. 448, 110 P.2d 287. Judicial acts of the county court in the exercise of its general jurisdiction in probate are protected from a collateral attack in the same manner and with the same force as are other judgments. Porter v. Hansen, 190 Okl. 429, 124 P.2d 391; McDaniel v. Theus, Okl., 361 P.2d 681. '(T)he validity of a person's appointment as personal representative of the estate...