State v. Joiner

• Decision Date: 26 March 1926
• Docket Number: 19749.
• Parties: STATE ex rel. SEATTLE NAT. BANK v. JOINER, Judge.
• Court: Washington Supreme Court

244 P. 551

138 Wash. 212

STATE ex rel. SEATTLE NAT. BANK v. JOINER, Judge.

No. 19749.

Supreme Court of Washington, En Banc.

March 26, 1926

Original prohibition by the State on the relation of the Seattle National Bank, against George A. Joiner, Judge of the Superior Court for Skagit County, to prohibit such court from assuming jurisdiction of relator in an action against relator and others by Frank F. Day. Writ issued.

Holcomb J., and Tolman, C.J., dissenting.

Bausman Oldham & Eggerman, of Seattle, for plaintiff.

Pemberton & Robinson, of Seattle, for defendant.

MACKINTOSH J.

Frank F. Day, whom hereafter in this proceeding we shall call the respondent, commenced an action in Skagit county, seeking damages from several defendants for their joint and several tort. One of the defendants is a resident of Skagit county some of the defendants are corporations, and one is the Seattle National Bank the relator here, whose place of business is in King county. This proceeding was commenced for the purpose of prohibiting the superior court of Skagit county from assuming jurisdiction of the relator; the relator having entered a special appearance and objected to the court's jurisdiction.

By the record before us is established the fact that the relator has not in Skagit county an office for the transaction of business, that no person resides in that county upon whom process might be served, and that the relator transacts no business, and transacted no business at the time the cause of action arose, in Skagit county. Jurisdiction of the relator, therefore, could not be obtained under section 206, Rem. Comp. Stat. But it is contended that the relator is properly suable in Skagit county for the reason that it is joined in a suit with a resident of Skagit county as a codefendant. The rule is contended for that the statute fixing the county in which actions against corporations may be had does not apply where the corporation is sued jointly with another. Were section 206 purely a venue statute, it might be possible to adopt this rule. But this court has consistently and persistently, since first considering section 206, adhered to the interpretation that that section was one relating to jurisdiction, and not to venue.

In McMaster v. Advance Thresher Co., 38 P. 760, 10 Wash. 147, it was held that an action begun against a corporation in a county in which it was not properly suable conferred no jurisdiction upon the court of that county, and that anything that that court undertook to do affecting that corporation in such a suit was void. This rule was followed in Hammel v. Fidelity Mutual Aid Ass'n, 85 P. 35, 42 Wash. 448, Richman v. Wenaha Co., 133 P. 467, 74 Wash. 370, and Davis-Kaser Co. v. Colonial Fire U. Ins. Co., 157 P. 870, 91 Wash. 383; and in State ex rel. Grays Harbor Comm. Co. v. Superior Court, 204 P. 783, 118 Wash. 674, the subject was again reviewed, and it was reannounced that under section 206 the court of a county in which a suit was improperly brought against a corporation acquired no jurisdiction, not even jurisdiction to grant a change of venue to a county in which a suit against the corporation might properly have been instituted.

It is difficult to see how, in the face of these decisions, it can be logically held that, by joining a corporation with a defendant properly suable in a county in which the corporation could not be sued, the court of that county thereby acquired jurisdiction over the corporation. An attractive argument is made for the contrary holding, on the ground that to follow the logical course would result in inconvenience, and reference is made to the decision in Commercial Nat. Bank v. Johnson, 48 P. 267, 16 Wash. 536; 49 P. 488, 17 Wash. 264, where this court, as a matter of convenience, adopted a rule permitting separate mortgages securing the same debt, but covering lands in different counties, to be foreclosed in either county, holding that the separate mortgages should be treated as one instrument, and thereby advantage could be taken of the statute providing that where a single mortgage covers land in two or more counties, it may be foreclosed in any county where part of the land is situated. In the instant case there is no such convenient fiction available, and, to sanction the suit against the relator in Skagit county, the court would be compelled to arbitrarily say that it could be done in the face of the logical result of long-established precedents. It may be that the decision in McMaster v. Advance Thresher Co., supra, was too broad; but it has been within the power of the Legislature for 32 years to have corrected the mistake, and the power still rests there to make provision for the suing of corporations in counties where they may be joined with some resident defendant. This court cannot so legislate.

The respondent says, however, that this court, as a matter of fact, held that the relator can be sued in Skagit county; that that is the effect of certain of our decisions, to which our attention is directed.

The first of these is Whitman County v. United States Fidelity, etc., Co., 94 P. 906, 49 Wash. 150. The per curiam opinion in that case holds that a corporation could not be sued alone in an improper county, and in an obiter statement it is said that, if a resident of another county had been sued in his county and the corporation joined with him, 'a different question would be presented.' There is hardly anything in that opinion to justify the claim that it supports the respondent's position here.

In State ex rel. American Sav. Bank & Trust Co. v. Superior Court, 198 P. 744, 116 Wash. 122, this court did say (it, however, being again obiter) that, if a resident of a county in which a corporation could not have been sued had been joined with the corporation there, there would have been 'no question as to the right to there proceed.' The situation which is presented to us now was not squarely before the court, and that decision cannot be taken as establishing any rule in this regard.

In Howe v. Whitman County, 206 P. 968, 212 P. 164, 120 Wash. 247, an action for personal injuries was brought in Spokane county against Whitman county and a joint tort-feasor who resided in Spokane county. It was held that Whitman county was properly suable in Spokane county by virtue of section 207, Rem. Comp. Stat., which provides that the action may be tried in a county where the defendants or some of them reside. The court there held that there was no statute which fixed the venue in actions against counties, and that therefore the action, being a transitory one, could be tried anywhere where jurisdiction could be obtained, and that jurisdiction was obtainable under section 207. We have, however, held that section 206 exclusively applies to jurisdiction over private corporations, and that section 207 has no reference to them whatsoever. The opinion in Howe v. Whitman County, supra, therefore can be of no avail to the respondent here.

It would seem, therefore, that we have not committed ourselves to any theory inconsistent with that originally announced in McMaster v. Advance Thresher Co., supra, and that no exception has been made to the law as announced in that case.

Respondent fortifies his argument by reference to law writers and decisions of courts of other states. An examination of these citations shows that, with the exception of a very few, they do not consider a situation similar to that which obtains in this state under our statutes.

Fletcher on Corporations, vol. 4, p. 4375, makes the general statement that, 'under the statutes permitting action to be in the county where any of several defendants resides or has its place of business, that of a co-defendant of the corporation may be chosen though the corporation could not be sued there'; in effect saying that an action against a corporation could be sustainable under section 207. But, as we have already said, this court has held that section 207 is inapplicable to a case against a corporation, that section 206 is the only applicable section, and that that is not one relating to venue but to jurisdiction. Furthermore, the same author, in volume 11 of his 1924 Supplement, recognized that Washington has adopted what probably is a unique holding on this subject, and that in this state, unlike any state to which reference is made, no jurisdiction is obtained whatsoever over a corporation in a county where it is not properly suable. We find, in volume 11, p. 558, the following:

'In Washington where a corporation is sued in the wrong county, the court acquires no jurisdiction over it, and prohibition will lie to prevent it from assuming jurisdiction.'

And on page 561:

'In Washington an action cannot be maintained against a corporation and an individual in a county in which the corporation could not otherwise be sued because the individual owns property there which it is sought to be attached, where he is a nonresident of the state and was not personally served with process in such county, since the law does not require that a nonresident defendant be sued in the county in which he has property to be attached, but expressly provides that writs of attachment may issue to other counties. But where the corporation is properly suable in the county where the action is brought, and is served there, individuals joined with it as defendants are subject to the suit there, although they are residents of another county.'

And again, on page 567:

'In Washington, where a corporation is sued in the wrong county, the court has no jurisdiction to order a change of venue to the proper county, and prohibition will not lie to compel it to do so.'

In 14A C.J. 793, a statement is made that a statute fixing the venue in actions...