11 P.2d 1022 | Kan. | 1932
The opinion of the court was delivered’ by
The first of these cases (No. 30,554) is an original proceeding in mandamus to require defendant to grant plaintiffs permission to sue the receiver appointed by the court in the case of Boggs v. Shenandoah Oil Company to determine plaintiffs’ claims of title to land situated in another county. The second (No. 30,658) is an appeal from the order of the court denying such permission. The actions are consolidated here, for, aside from questions relating to procedure which are no longer important, they present the same legal questions; namely, the power of the court to refuse such permission in the situation disclosed by the record; or, if the court has power to so refuse, whether such refusal was an abuse of its discretion.
The motion for the writ of mandamus alleges in substance that defendant is the duly elected, qualified and acting judge of the fifteenth judicial district of this state, which includes Osborne county; that plaintiffs reside in New York City; that for five years last past they claim to have been the owners of a described quarter section of land situated in Montgomery county, Kansas, subject to certain oil and gas leases now owned by the Red Mound Oil Company; that, except for the interest of the oil company and its predecessors in the oil and gas lease, plaintiffs claim that during all the time mentioned they were and now are the fee owners of the land described, and that they have been in possession thereof through their agent, who is named; that the royalties from the oil and gas lease have been regularly paid to them until in July, 1931, since which time they have been held up because of certain events soon to be mentioned; that prior thereto and in 1923 one J. Y. Boggs commenced an action in the district court of Osborne county against the Shenandoah Oil Company, in which action a receiver was appointed, and such action is still pending in that court; that about June 13,
The defendant has filed an answer to the alternative writ in which the place of residence of plaintiffs is admitted; also defendant’s official position; also that the action of Boggs v. Shenandoah Oil Company, in which a receiver was appointed, was brought and is pending in his court. It is alleged that prior to the bringing of such action, and in 1919, Richard C. Patterson, father of plaintiffs, leased the real property in controversy to Hal W. Neiswanger for gas and
For the purpose of the hearing in this court only it is stipulated that the real property in controversy stands in the name of plain
In the appealed case the abstract shows the application made to the court in July, 1931, for permission to sue the receiver, and the order of the court made the following September refusing such permission. As a part of the abstract appellees have set forth a part of the testimony taken before the court on the former application for permission to sue the receiver.
Plaintiffs in the mandamus proceeding contend that the pleadings disclosed an actual controversy respecting the titlé to the real property situated in Montgomery county and argue that an action for the determination of the rights of the parties to that real property, whether by ejectment, to quiet title, or in some other form, must be brought in the county where the land is situated, and in support of this contention cite our statute (R. S. 60-501), the pertinent portion of which reads:
“Action for the following causes must be brought in the county in which the subject of the action is situated, . . . For the recovery of real property, or of any estate or interest therein, or for the determination in any form of any such right or interest, or to bar any defendant therefrom.”
In a long line of decisions this court has consistently held in conformity with this statute that such actions must be brought in the county in which the real property is situated. (Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785; Jones v. Investment Co., 79 Kan. 477, 99 Pac. 1129; Martin v. Battey, 87 Kan. 582, 125 Pac. 88; Randall v. Ross, 94 Kan. 708, 147 Pac. 42; Moore v. Hopkins, 112 Kan. 345, 210 Pac. 1095; Black v. Black, 131 Kan. 154, 289 Pac. 480.)
Defendant argues that this statute and these decisions do not apply when the title to the land in question is claimed by a receiver appointed by the court of another county than that in which the land is situated. The statute makes no such exception, and in at least one case in which the statute was applied the receiver from another state was a party {Simington v. Cubberly, 132 Kan. 199, 203, 294 Pac. 908). We see no reason to make the exception contended for by defendant. Especially wb see no such reason in this case where, from all the facts alleged, it seems reasonably clear that plaintiffs should have an opportunity to litigate their title in the forum provided by the statute.
In the mandamus proceeding the writ prayed for will issue. In the appealed case the order of the court refusing the permission requested is reversed.