Citations
- 83 Cal. 491
Full opinion text
Vanclief, C.
This is an original application to this court for a writ of prohibition commanding the superior court of San Joaquin County to desist from further proceeding in an action by White and Thomas against the petitioner to recover a balance of six thousand dollars upon a building contract. The petitioner is a banking corporation, incorporated under the laws of the United States, having its principal place of business in the county of Fresno, in this state. The contract was for the building of a house for the petitioner in Fresno County, and was performed on the part of the plaintiffs in that county, but the contract, which is in writing, does not state where payment for the work was to be made.
The summons in the action was served on the petitioner in Fresno County. Without appearing for any other purpose, the petitioner—defendant in that action —¡moved to dismiss the action, on the ground that the superior court of San Joaquin County had no jurisdiction of the person of the defendant. This motion was denied. A bill of exceptions by the defendant on the denial of this motion and a copy of the complaint are set out in the petition as the basis of this application.
It appears that, after the denial of the motion to dismiss, the defendant filed a demurrer and answer to the complaint, and demanded a change of the place of trial to Fresno County, and gave notice of motion for that purpose; but it does not appear that the court ever acted or was moved to act upon the demurrer or the matter of the change of venue. There is nothing, however, in the demurrer, answer, or demand for change of venue having the effect to waive any right that the defendant ever had to a dismissal of the action.
1. It is admitted by counsel for petitioner that by virtue of section 5 of article 6 of the constitution the court had jurisdiction of the subject-matter of the action; but they contend that section 16 of article 12 deprives the court of jurisdiction of the person of the defendant, for the reasons that the defendant is a corporation having its principal place of business in Fresno County; that the contract upon which the suit was brought was not made and was not to be performed in San Joaquin County, and that no obligation on that contract arose or breach thereof occurred in San Joaquin County. Whether these are sufficient reasons or not, it appears that they are true as matters of fact.
The section of the constitution relied on is as follows: “A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases.”
It is claimed that this section, though not mandatory in form, is made so by section 22 of article 1, which is as follows: “The provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.”
But the express words “m