(dissenting).
In each instance where we have invoked the doctrine of forum non conveniens the case was originally filed in a jurisdiction some distance away from where the cause of action arose and the parties and witnesses resided.
In this case we have only two aspects which differ. The action involves a suit for a divorce and.the plaintiff resides in Oklahoma County. Query: Are these factors sufficient to deny the application of the doctrine ? I think not.
While I am of the opinion that the doctrine of forum non conveniens should only be sparingly invoked and that a mere inconvenience is not a sufficient reason for .denying its application, the factors present in the instant case are compellingly persuasive to invoke its application.
The parties were married in Creek County, and had lived there as husband and wife during their entire twenty-eight years of marriage. Their children were raised in Creek County. All of their jointly acquired property, which includes their residence, farms and rent houses, are in Creek County. On the other hand, Plaintiff’s only connection with Oklahoma County is that she lived with a “friend” in Oklahoma County a sufficient amount of time to establish a legal residence.
The majority opinion also restricts the doctrine to transitory actions, and then attempts to show that divorce actions are not transitory. Assuming arguendo this should be an essential requirement, then in my opinion divorce actions are transitory. Transitory actions are founded on causes of personal character, and may be laid where the defendant is found. Local actions, as distinguished from transitory actions, are founded on causes that necessarily refer to locality, and must be laid in the county of the subject matter. First Nat. Bank of Seminole v. Henshaw, 169 Okl. 49, 35 P.2d 898, 901 (1934), quoting State ex rel. Logan v. Graper, 155 Tenn. 565, 4 S.W.2d 955 (1927). Jurisdiction over the “res”, the marriage status, follows the domicile of the spouses. Evans v. Evans, 141 Fla. 860, 194 So. 215, 217 (1940); Wible v. Wible, 153 Kan. 428, 110 P.2d 761 (1941); Fritz v. Fritz, 55 Del. 328, 187 A.2d 348, 349 (1962). See also 27A C.J.S. Divorce § 83 p. 284. Wible v. Wible, 110 P.2d p. 763, supra, holds that the legislature in fixing venue for divorce actions had in mind “the convenience of the parties.”
If the theory of forum non conveniens has any merit surely the facts in this case justify its application. I see no logical reason for applying the doctrine to transitory tort actions and not applying it to divorce actions.
• I am authorized to state that BERRY and LAVENDER, JJ., concur in the views herein expressed.