Albert R. Matthews (Matthews), a resident of Muskogee County, brought suit in the District Court of that county against petitioner, Austin Marsh (Marsh), a resident of Jackson County and a non-resident of Muskogee County. Service of process on Marsh was at his residence in Jackson County. Matthews sought liquidated dаmages for breach of contract of sale of real property located in McIntosh County.
By special appearance and a plea to venue, Marsh objected to venue in Muskogee County. Thereafter, Matthews, by an *834 amended petition that incorporated the original petition, made Phoenix Federal Savings and Loan Association (Phoenix) an additional party defendant. Under the contract of sale of the real property, Phoenix was the escrow holder of part of the рurchase price. Phoenix is a resident of Muskogee County. The amended petition sought money judgment against Marsh and an order requiring Phoenix to deliver the escrowed money to Matthews. Trial court overruled the plea to venue. Defendant Marsh brings this original action as petitioner and seeks a writ of prohibition to prohibit the trial court from proceeding further in that district court action.
This cоurt assumes original jurisdiction under its exercise of a general superintending control over the district court. Okl. Const. Art. 7, § 4. Granting a writ of prohibition is discretionary in the exercise of that supervisory control according to the nature ana the circumstances of eaсh particular case.
Rey v. Means, In & For Tulsa Cty.,
Okl.,
Respondents, through the plaintiff in the district court action, Matthews, contend venue lies under 12 O.S.1971, § 142 or § 139. Petitioner аrgues lack of venue in Muskogee County through these sections.
Parties agree § 142 allows venue to lie in Muskogee only if the contraсt of sale of real property is includible in the phrase “for the collection of any note, or other instrument of indebtedness” аs used in that section.
Our holding and rationale in
Powers v. Carson,
Okl.,
Similarly, the same characteristics are usually lacking in a contract of salе of real property. Normally contained in such a contract are conditions relating to escrow, title, default, and liquidated damages. In present case, like conditions are found in the contract of sale that destroys the necessary charaсteristics. Section 142 cannot be used as allowing venue to lie in Muskogee County, here.
Through the amended petition that incorpоrates the original petition and for the purpose of this original action, the district court suit is to recover liquidated damages fоr default of the purchaser under a real estate contract of sale, and to secure the delivery of an escrow аccount made by the purchaser as required by the contract. There are two defendants: (1) the non-resident and, as alleged, defaulting purchaser, Marsh; and (2) the resident and escrow holder, Phoenix. There is an allegation of Marsh’s refusal to release the еscrow amount. As alleged, that refusal constitutes an assertion of control and interest in the escrowed money. Though not a neсessary party as to the recovery of liquidated damages, Phoenix, as possessor and holder of the escrowed sum, is a neсessary party if Matthews is to secure delivery of the es-crowed sum under the district court litigation.
In
Krumme v. Walker,
Though parties requested for this original action not to be decided solely on whether the action was properly brought originally, that contention is raised by Marsh.
Prior to the amended petition, the sole defendаnt was Marsh, the non-resident. No cause of action was stated by the original petition against a resident defendant, for the only defendant was the non-resident, Marsh. Under
Maggi v. Johnson,
We find the district court action by Matthews against thе non-resident Marsh was not rightly brought at the time of service on Marsh in the county of his residence and the amended petition, now stating a cause of action against an added resident defendant, cannot relate back. “(A)bsence of venue of the person of non-resident defendants cannot be involuntarily supplied without issuance and service of process under such circumstances.” 3
Writ оf prohibition is granted so as to prohibit the respondent judge from proceeding further in the district court action until venue is established undеr the views of this opinion. To allow respondent trial court to proceed without venue is a useless expenditure of judicial effort.
ORIGINAL JURISDICTION ASSUMED AND WRIT OF PROHIBITION GRANTED.
Notes
. Opinion at p. 837 quotes in part
Hellman et al. v. Logan et al.,
“ * * * . The test is to be made by ascertaining who are necessary parties to .the action as it is set forth in the complaint, and *835 what parties are necessary in order to enable the plaintiffs to obtain all the relief which is properly included in the prayеr for relief made therein. * * * If one of the parties who are thus made necessary resides in the county in which the action is begun, the аction is properly begun and may be properly tried in that county, although the other and principal defendant resides in another county. * * *
. Syllabus by the Court reads:
“The filing of an amended petition stating for the first time a cause of action against the resident defendant and a joint transitory cause of action against all defendants within the time allowed by the court does not relate back and make the former sеrvice on non-resident defendants good; absence of venue of the person of non-resident defendants cannot be involuntarily supplied without issuance and service of process under such circumstances.”
. See n. 2, supra.