17 Utah 435 | Utah | 1898
- This action was commenced in the district court of Tooele county to recover a certain sum alleged to be due on a promissory note. The defendant demurred to the complaint on the grounds that it failed to state a cause of action, and that it appeared on its face that the court had no jurisdiction. The demurrer was overruled, and the defendant failing to answer, judgment was entered against him.
The decisive question presented, on his appeal from the judgment, is whether the court had jurisdiction to try the
“Cause of action,” in the >sense here indicated, is synonymous with “right of action,” and includes the omission or act without which no right of recovery could exist. In this case it includes the omission which constituted the violation of duty agreed to be discharged, and arose at the time when and place where that duty was to be discharged. When a thing is done which ought not to have been done, or when a thing is not done which' ought to have been done, a cause of action arises, and such doing or omitting to do forms the basis of the action; and, while the contract constitutes necessary evidence to establish a right to recover, it does not constitute the thing which establishes the right to bring the action, although such thing must have been preceded by the contract. That which gives cause for complaint is the breach. Hence whenever the breach occurs, whether by commission or omission, the cause of action arises; and when the contract is to be performed at a place stipulated, the act or omission, which is the groundwork for complaint, will be regarded as having occurred at that place. “A cause of action is said to accrue to any person when that person first comes to a right to bring an action.” Bouv. Law Diet. Cause of action is “the fact or combination of facts which gives rise to a right of action.” Rap. & L. Law Dict. In Bliss, Code Pl. § 113, the author says: “We have defined an action to be a judicial proceeding for the prevention or redress of a wrong. The cause of action, then, is the wrong. In a given case, the second phrase at the head of this section includes the first, for there can be no cause of action aside from the facts which constitute it. The facts show a wrong committed or threat
In Hosley v. Insurance Co., 86 Wis. 463, respecting the same question, it was observed: “It was the default in payment within the ninety days which made the cause of action perfect- Prior to this default, an action would
Counsel for the respondent cited Wallace v. McConnell, 13 Pet. 136, but it does not militate against the principles hereinbefore stated. Mr. Justice Thompson, delivering the opinion of the court, said: “The place of payment in a promissory note, or in an acceptance of a bill of exchange, is always matter of arrangement between the parties for their mutual accommodation, and may be stipulated in any manner that may best suit their convenience.” Unquestionably, this is the law, and is just what was done by the parties in this case. They stipulated in the note that it should be paid at a certain place, but the promisor failed to do so, and this fact is admitted,
From the foregoing considerations, we are of the opinion that the cause of action in this case arose in Salt Lake City and county where the note was made payable, and that the suit was improperly brought in Tooele county. The case must therefore be reversed and remanded, with direction to the court below to dismiss the action. It is. so ordered.