# City of McAlester v. Fogg > Supreme Court of Oklahoma · June 25, 1957 · 312 P.2d 867 URL: https://www.frixlaw.com/law-library/cases/9564013 ## Case - **Full name:** The CITY OF McALESTER, Oklahoma, a Municipal Corporation, Plaintiff, v. the Honorable William L. FOGG, Judge of the District Court of the Seventh Judicial District, Oklahoma, Defendant - **Court:** Supreme Court of Oklahoma - **Decided:** June 25, 1957 - **Citations:** 312 P.2d 867 - **Precedential status:** Published - **Opinion:** Dissent by Williams - **Judges:** Davison, Johnson, Welch, Halley, Carlile, Williams, Corn, Blackbird, Jackson - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9564013 ## Opinion text WILLIAMS, Justice (dissenting). In my opinion, the majority opinion changes the statutory law of venue in this state and almost completely abrogates one section thereof by reading into both the statute and previous opinions of this court that which was not there, and which completely changes the meaning thereof. Furthermore, such action is taken chiefly upon the authority of an isolated case which is not in point and which is from a jurisdiction whose venue statutes differ greatly from those of this state. If it be necessary to refer to cases from other jurisdictions for authorities upon which to base the opinion in this case, which I do not believe to be true, there are numerous decisions available from our neighboring states whose venue statutes are either identical with or substantially similar to those of our own state and which are much more in point than the Kentucky case relied upon by the majority opinion. The code of civil procedure of this state, of which the venue statutes herein involved are a part, was adopted from the State of Kansas, and the decisions of that state are therefore very persuasive. Wells v. Shriver, 81 Okl. 108 , 197 P. 460 . 12 O.S. 1951 § 154 has never been amended and exists today in the same form in which it was originally adopted from the state of Kansas. 12 O.S.1951 § 134, has been only slightly amended since its original adoption. The case of Farmers Grain & Supply Co. v. Atchison, T. & S. F. Ry. Co., 120 Kan. 21 , 121 Kan. 10 , 245 P. 734, 736 , was a case where the Farmers Grain & Supply Co. brought a suit in Reno County, Kansas, against the Atchison, T. & S. F. Ry. Co., the Red Star Milling Co., and the Edward Kelly Grain Co., the last two named corporate defendants having their places of business in Sedgwick County, Kansas. These last named defendants attacked the venue of the action, claiming that they should have been sued in Sedgwick County, the county of their residence. The Supreme Court of Kansas disposed of such contention with the following language: *872 “The defendants, other than the railway company, located in Sedgwick county, contended that they were illegally summoned and sued in Reno county, where the action was brought. It is conceded that jurisdiction of the railway company was obtained in Reno county, and under the statute, when an action is rightly brought in one county, a summons may issue to another against nonresident defendants. R.S. 60-2502”. In Traders State Bank of Glen Elder v. Wooster, 159 Kan. 337, 154 P.2d 1017, 1022 , the action was brought by Traders State Bank of Glen Elder against O. O. Wooster, the A. B. Reed Hide & Wood Company and A. B. Reed, et al, to recover certain money. The action was brought in Mitchell County, Kansas. Defendant, O, O. Wooster, resided in Mitchell County and service was had on him in that county, and process was issued to Saline County, Kansas, where it was served upon the A. B. Reed Hide & Wood Company, which had its place of business in Salina, in Saline County. In the opinion the court said: “Since one of the necessary parties to the action resided in Mitchell county, the action was properly brought in that county, and summons was properly served on the other necessary parties to the action in Saline county.” The Supreme Court of the State of Missouri, in the case of State ex rel. Columbia Nat. Bank v. Davis, 314 Mo. 373 , 284 S.W. 464 , had before it a case quite similar to the case at bar, even to the extent of being an original action to procure a Writ of Prohibition. The questions involved, as well as the statutes involved, in that case, are strikingly similar to those in the case at bar. The holding of the court as shown by the syllabus of the opinion therein, is as follows: “Statute fixing venue in actions, against corporations does not apply, where a corporation is sued jointly with another, unless no cause of action exists against • latter or plaintiff dismisses suit as to him before trial. * * * * # ⅜ “Rev.St.1919, § 1177 [V.A.M.S. § 508.010], providing that suits against several defendants residing in different counties may be brought in any such county, applies to all defendants, including corporations sued with natural persons or other corporations, as corporations have residences as do natural persons. “Rev.St.1919, § 1180 [V.A.M.S. § 508.040], requiring that suits against corporations be commenced in county where cause of action accrued, or where corporation has office or agent, applies only where corporation is sole defendant, not where it is sued with natural persons or another corporation, as to so construe act would impliedly repeal section 1177 as respect's corporation defendants and convict Legislature of enacting scheme of venue in civil cases not covering all possible situations. “Statutes should not be construed as enacting scheme of venue in civil cases not covering all possible situations, unless plain language of each is susceptible of no other construction.” In the body of the opinion, the court used the following language: “It can as well be said in this case, that, if section 1180 must be construed as relator contends, such construction destroys the jurisdiction over corporation defendants of courts in counties where other defendants reside and renders meaningless to that extent subdivision 2 of section T177, providing that — ‘When there are several defendants, and they reside in different counties, the suit may be brought in any such county.’ “Such construction should only be adopted where the Legislature has clearly expressed its intention. Such construction would make it necessary, *873 in causes of action against two corporations having offices in different counties, to bring two suits upon one joint and several cause of action, which accrued outside of the state, or plaintiff would have to pick the corporation which he wished to proceed against in a single suit. * * * “ * * * To construe section 1180 as fixing the venue of suits against corporations when they are sued with natural persons or another corporation is to repeal section 1177 by implication in so far as corporation defendants are concerned, when the plain language of section 1177 is that it applies to all defendants. So much of section 1177, as is of interest here, reads: ‘Suits instituted by summons shall, except as otherwise provided by law, be brought: * * * Second, when there are several defendants, and they reside in different counties, the suit may be brought in any such county,’ etc. “Corporations have a residence the same as do natural persons. 14 C.J. 338. By construing section 1180 to apply only where a corporation is made sole defendant in a suit, no violence is done to subdivision 2 of section 1177, and the two sections, as thus construed, constitute parts of a harmonious and workable scheme of venue in civil cases. To construe section 1180 otherwise is to convict the Legislature of enacting a scheme of venue in civil cases which does not cover all possible situations. This should not be permitted unless the plain language of the two sections is susceptible of no other construction.” In the case of Sallee v. Bank of Corning, 122 Ark. 502 , 184 S.W. 44, 47 , the suit was brought by the plaintiff in Randolph County, Arkansas, against Running Lake Drainage District in Randolph County, and the Bank of Corning, a corporation doing business in Clay County, Arkanas. Summons was issued from the court in Randolph County and served on the president of the bank in Clay County. At the instance of the bank, the service of summons was quashed on the grounds that the bank could not be sued in Randolph County. The Supreme Court of Arkansas in reversing the circuit court of Randolph County, said: “The court also quashed the service of summons upon the Bank of Corning. The suit was commenced in Randolph county, and service of summons against Spinnenweber and the United States Fidelity & Guaranty Company was had in that county. The Bank of Corning had its place of business in Clay county, and service of summons was had upon its president in that county. This was sufficient. “Under section 6072 of Kirby’s Digest, an action like the present one may be brought in any county in which one of several defendants resides or is summoned. If the suit had been' against the Bank of Corning alone, it should have been brought in Clay county where the bank was situated and did business. See section 6067 of Kirby’s Digest. However, as we have already seen, the suit was brought against the Bank of Corning and other defendants, and service was had upon the other defendants in Randolph county. They were proper parties to the suit, and judgment against the Bank of Corning could be upheld under section 6072 of Kirby’s Digest.” The Supreme Court of Texas rendered an opinion to the same effect as the foregoing in the case of Mercantile Bank & Trust Co. v. Schuhart, 115 Tex. 114 , 277 S.W. 621 . In my opinion the foregoing authorities are most compelling. However, as I have already indicated, it is not necessary to resort to authorities from other jurisdictions, because the decisions of this court have already settled the questions here involved very clearly. In Wray v. Garrett, 185 Okl. 138 , 90 P.2d 1050, 1051 , the. court said: *874 “However, it is settled that an action against two or more defendants jointly liable may be maintained against such defendants in any county that is proper venue for any one of the defendants. Section 117, O.S. 1931, 12 Okl.St.Ann. § 139; Section 167, O.S.1931, 12 Okl.St.Ann. § 154.” The majority opinion characterizes the above wording as being somewhat loose and as permitting 'a misconception of the meaning intended. In my opinion the language used was neither loose nor subject-to misconception. I think it means just exactly what it says. The above quotation from Wray v. Garrett, supra, is immediately followed by the following citations of authority: Fisher v. Fiske, 1923, 96 Okl. 36 , 219 P. 683 ; Oklahoma State Bank of Ada v. Reed, 1926, 121 Okl. 103 , 247 P. 402 ; Wilkinson v. Whitworth, 1934, 169 Okl. 286 , 36 P.2d 932 ; In the case of American Body & Trailer Co. v. Higgins, 195 Okl. 349 , 156 P.2d 1005, 1007 , the court said in the body of the opinion: “The action is transitory and not being within the statutory exceptions thereto the venue is to be determined by Title 12, sec. 139, O.S. 1941, providing that ‘ * * * action must be brought in the county in which the defendant or some one of the defendants resides or may be summoned 4 * * ’ as qualified by section 134 of same title to the effect such action against a domestic corporation 'may be brought in the county in which it is situated, or has its principal office or place of business, or in which any ’>xof the principal officers thereof may reside, or be summoned, or in the county where the cause of action or 'some part thereof arose.’ ” In case of First State Bank of Tuskahoma v. J. B. Klein Iron & Foundry Co., 180 Okl. 42 , 68 P.2d 777, 778 , the action was instituted by a domestic corporation against a co-partnership, a foreign insurance corporation and two state banking corporations, as well as an individual. All of the defendants except the foreign insurance corporation were residents of and domiciled in Pushmataha County, Oklahoma. The action was instituted in the district court of Oklahoma County. The two state banking corporations appealed from the judgment of the district court, and in the body of the opinion this court said: “The first of these is that the trial court erred in overruling their special appearance and motions to quash. We think that this contention is well taken. As said in State ex rel. Murray v. Mortgage Securities Corp., 175 Okl. 503 , 53 P.2d 560 : ‘Where summons is issued from one county to another under the provisions of section 117, O.S.1931 [12 O.S.1951 § 139], and the petition in the case fails to state a joint cause of action against the resident and nonresident defendants, the summons so issued to another county may be quashed at the instance of the nonresident de-fendant upon special appearance and proper motion.’ See, also, Wilkinson v. Whitworth, 169 Okl. 286 , 36 P.2d 932 ; Fisher v. Fiske, 96 Okl. 36 , 219 P. 683 . Had the petition of the plaintiff stated a joint cause of action against the defendants, then summons could have rightfully issued for the other defendants in Pushma-taha County. See LaFayette v. Bass, 122 Okl. 182 , 252 P. 1101 .” (Emphasis added.) The majority opinion fails to take note of the distinction between a suit against several tort-feasors when they are sued jointly, and a suit against an individual alone or against a corporation alone. However, this court has already indicated that there is such a distinction in the case of Fisher v. Fiske, supra. In the body of the opinion in that case the court said [ 96 Okl. 36 , 219 P. 684 ] : “There is a valid distinction between a suit against tort-feasors, when they are attempted to be held jointly, and against them when they are attempted to be held severally and individually. *875 In the former, the statute permits a nonresident to be brought in as a necessarily proper party; in the latter, the nonresident cannot be forcibly made a party to the suit. Therefore, should it be determined at any time that the resident defendant is not properly a party, is not connected with the alleged liability of the nonresident, the nonresident cannot be held upon his several or individual liability outside of the county of his residence.” The majority opinion correctly holds that for the purpose of venue a municipal corporation is a domestic corporation. We so held in Oklahoma City v. District Court, 168 Okl. 235 , 32 P.2d 318 , 93 A.L.R. 489 . The majority opinion then proceeds to hold, however, that a domestic corporation cannot be sued jointly, as a joint tort-feasor, in any county other than the county in which it is situated or in which the cause of action arose. Such holding is clearly contrary to the plain provisions of our venue statutes and the prior opinions of this court, as well as the opinion of the courts of other states having the same or substantially similar venue statutes. I therefore respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9564013. Public record. Not legal advice.