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Cooper v. Amerada Hess Corp.9/15/2000
lature enacted the following venue statute:
All suits, instituted in any of the courts of this Territory, shall be brought in the county in which the defendant resides, or in the county in which the plaintiff resides, and the defendant may be found; and in case the defendant is not a resident of this Territory, such suit may be brought in any county. 1853 N.M. Laws, ch. XXIX, § 4 (the 1853 Act).
In 1876, the Legislature enacted a new venue statute, 1875-76 N.M. Laws, ch. II. (1876) (the 1876 Act). The 1876 Act provided as follows:
Section 1. That all civil actions which may hereafter be commenced in the district courts, shall be brought and shall be commenced in counties as follows, and not otherwise:
First, All transitory actions shall be brought in the county where either the plaintiff or defendant, or some one of them, in case there be more than one of either, resides.
Second, Or in the county where the contract sued on was made or is to be performed, or where the cause of action originated or indebtedness sued on was incurred.
Third, Or in any county in which the defendant or either of them may be found in the Judicial District where the defendant resides. . . .
Second, When the defendant has rendered himself liable to a civil action by any criminal act, suit may be instituted against such defendant in the county in which the offense was committed, or in which the defendant may be found or in the county where the plaintiff resides.
Third, When suit is brought for the recovery of personal property other than money, it may be brought as above provided, or in the county where the property may be found.
Fourth, When lands or any interest in lands are the object of any suit in whole or in part, such suit shall be brought in the county where the land or any portion thereof is situate.
Fifth, Suits for trespass on lands shall be brought as provided in the first section of this act, or in the county where the land or any portion thereof is situate.
Sixth, Suits may be brought against transient persons or non-residents in any county of this territory.
A comparison of Section 38-3-1 with the 1876 Act reveals that Section 38-3-1 is the direct descendant of the 1876 Act.
Common-law courts traditionally maintained a distinction between "transitory" and "local" actions. See Mostyn v. Fabrigas, 98 Eng. Rep. 1021 (K.B. 1774); Livingston v. Jefferson, 15 F. Cas. 660 (C.C.D. Va. 1811) (No. 8,411); see generally 17 Daniel R. Coquillette, Gregory P. Joseph, Georgene M. Vairo, Sol Schreiber & Jerold S. Solovy, Moore's Federal Practice §§ 110.20, 110 App.104 (3d ed.) (Moore's); 77 Am. Jur. 2d Venue § 2 (1997).
A cause of action was transitory if the transaction on which it was founded might have taken place anywhere; an action was local if the transaction could have happened only in a particular place. When transitory in nature, the action could be brought wherever the defendant could be found and jurisdiction over his person obtained. On the other hand, if the action was local in nature, it could only be brought where the cause of action arose. 77 Am. Jur. 2d Venue § 2; see also Livingston, 15 F. Cas. at 664.
At common law, both suits to recover real property and suits to recover damages for injury to real property were deemed local in character. See generally XXII William M. McKinney, Encyclopedia of Pleading and Practice, Venue § II.b. (1902) (McKinney); 77 Am. Jur. 2d Venue § 18. It is clear that Plaintiffs' claims for nuisance and trespass would have been treated as local claims under the common law. McKinney, § II
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