Local actions, as distinguished from transitory actions, are founded on causes that necessarily refer to locality, and must be laid in the county of the subject matter. First Nat. Bank of Seminole v. Henshaw, 169 Okla. 49, 35 P.2d 898, 901 (1934), quoting State ex rel. Logan v. Graper, 155 Tenn. 565, 4 S.W.2d 955 (1927). A clear reading of 12 O.S. 1971 ยง 1272.1[12-1272.
Chapman v. Parr, 521 P.2d 799, 800 (Okla. 1974); First Nat'l Bank of Seminole v. Henshaw, 169 Okla. 49, 35 P.2d 898, 901 (Okla. 1934). The proper venue for the petitioners' negligence and products liability action against the respondent A-1 Lawn Mower Shop is found at 12 O.S. 1991 ยง 134[ 12-134], which provides in pertinent part:
Discretion means a legal discretion to be exercised in discerning the course prescribed by law according to principles established by the adjudicated cases. First National Bank v. Henshaw, 169 Okla. 49, 53, 35 P.2d 898, 902-03 (1934). It means a legal discretion, controlled and limited by sound principles of law applied to the facts.
We have reviewed the evidence and believe either Kay or Noble County would be a more convenient forum. The Plaintiff and her mother are residents of Noble County, Oklahoma, and the Defendant Simpson and his personal representatives are residents of Kay County, Oklahoma. This court has held that the Defendant has a valuable right to be sued in his home jurisdiction, First National Bank v. Henshaw, 169 Okla. 49, 35 P.2d 898. This cause of action arose in Noble County; and, if it would be helpful, the scene of the accident could be more conveniently viewed by a jury impanelled in either Kay or Noble County. All of the parties and all but one of the lay-witnesses and the principal medical witnesses are from Kay, Noble or Garfield Counties, and might more conveniently and at less expense, attend or be compelled to be present in Kay or Noble County. In this connection, we take judicial knowledge that geographically Kay, Noble and Garfield Counties are contiguous.
ial of Civil Cases, 48 Mich.L.Rev. 1; The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Col. Law Review 1; Place of Trial-Interstate Application of Intrastate Methods of Adjustment, 44 Harvard Law Review 41; The Inappropriate Forum, 29 Illinois Law Review 867; The Doctrine of Forum Non Conveniens, 34 Virginia Law Review 811; The Doctrine of Forum Non Conveniens, 35 Calif.Law Review 380; Jurisdiction and the Exercise of Discretion by the Court โ Forum Non Conveniens, 49 Canadian Bar Review 466; Forum Non Conveniens in Washington, โ A Dead Issue?, 35 Washington Law Review 88; Forum Non Conveniens in Missouri โ History and Appraisal, 36 Missouri Law Review 105; Gore v. U.S. Steel Corp., 15 N.J. 301, 104 A.2d 670, 48 A.L.R.2d 841; Plum v. Taxpax, 402 Pa. 616, 168 A.2d 315, 90 A.L.R.2d 1105; and Mooney v. Denver R.G.W.R. Co., 118 Utah 307, 221 P.2d 628. We have held that the right of a defendant to be sued where he lives is a valuable right and should not be lightly denied, First Nat. Bank v. Henshaw, 169 Okla. 49, 35 P.2d 898, and that ordinarily an individual defendant has a right to be sued in the county of his residence, Hiner v. Hugh Breeding, Inc., Okla., 355 P.2d 549. We have already pointed out the advantages of trying a transitory action where it arises.
" See also First National Bank of Seminole v. Henshaw, 169 Okla. 49, 35 P.2d 898, 899, the second syllabus of which is as follows: "In that class of actions where the venue is fixed in the provisions of section 117, O.S. 1931 (12 O.S. 1951, Sec. 139 [ 12-139]), the privilege of being sued in no other county than that of one's residence or in the county where one may be summoned is a valuable right."
"Statutes permitting a defendant to have certain actions tried in the county where he resides are remedial in nature and are liberally construed, to the end that a defendant may not be unjustly deprived of that right. Exceptions authorizing the bringing of certain suits in a county other than that of the defendant's residence are to be strictly construed. It will not be assumed that the Legislature intended to impair that right unless it has manifested intention to do so plainly and unequivocally." See, also, First National Bank of Seminole v. Henshaw, 169 Okla. 49, 35 P.2d 898; Hixon v. Chamberlin, 116 Okla. 77, 243 P. 183; Grady v. Rice, 98 Okla. 166, 224 P. 321, and Brenner v. Egly, 23 Kan. 83. Defendant in error, plaintiff below, asserts that Shawnee Peanut Company waived the alleged defect in the service of summons and entered its general appearance by any one of "seven distinct Acts."
In the instant case the carrier had no fixed line or route of travel as in the case of class "A" carriers, but could operate its trucks all over the state without regard to any line or route of travel to be maintained by it. It is not contended that defendants had any structure of any kind in Oklahoma county. Therefore it did not come within the provision of section 135 relied upon by plaintiff. In First National Bank of Seminole v. Henshaw, 169 Okla. 49, 35 P.2d 898, we said that the right of a defendant to be sued in the county of his residence was a valuable right, and further said: "In the case of Hixon v. Chamberlin, 116 Okla. 77, 243 P. 183, 46 A.L.R. 313 this court held that: `The venue of actions not otherwise specifically provided for is in the county where defendant resides `or may be summoned,' . . ."
Under 12 O.S. 1941 ยง 139[ 12-139], the defendant must be sued in the county where he resides or may be served. In First National Bank of Seminole v. Henshaw, 169 Okla. 49, 35 P. 898, we said the general rule is that as relates to a transitory action the defendant is entitled to trial in the county of his residence or where he may be summoned. In Pace v. Ott, 189 Okla. 230, 115 P.2d 253, we quoted from Mills v. District Court of Lincoln County, 187 Okla. 247, 102 P.2d 589, as follows:
In view of the conclusions reached, it follows that no part of plaintiff's cause of action against defendant corporation arose in Pittsburg county, and hence said county is not the venue provided by statute for said action as against either of said defendants. In support of the application for the writ, petitioners cite and rely on First National Bank v. Henshaw, 169 Okla. 49, 35 P.2d 898, on authority of which it is urged that the trial court is without jurisdiction, and Atlas Life Ins. Co. v. Randle, 190 Okla. 680, 126 P.2d 517, which is said to be to the same effect. On behalf of respondent it is urged the Henshaw Case is not applicable for the reason the court was seeking to exercise jurisdiction over one not a party to the action, while in the Randle Case, where defendants were served, they sought and obtained relief on appeal after judgment and not through prohibition.