Bookwalter v. Conrad

15 Mont. 464 | Mont. | 1895

Lead Opinion

Djg Witt, J.

— The labor and zeal of counsel in preparing briefs in this case seem to us to be disproportionate to the gravity of the legal proposition involved, which indeed occurs to us as a very simple one.

Counsel for respondent, among other things, in support of their opposition to the motion to grant the change of venue, rely upon a portion of section 11, article VIII, of the constitution, which is as follows: “All actions for the recovery of, the possession ofj quieting the title to, or for the enforcement of liens upon, real property shall be commenced in the county in which the real property, or any part thereof, affected by such action or actions, is situated.”

The action in the case at bar was commenced as the constitution requires.

The action was as to real property, and it was commenced in the county in which the real property was situated, to wit, Missoula county.

But we cannot understand how it may be argued that this provision of the constitution requires that the action shall be tried in a county where the real property is not situated, or in a county where the real property has ceased to be situated long before the trial, and, indeed, almost at once after the filing of the complaint. If any inference is to be drawn from section 11, article VIII, of the constitution, as to where an action in regard to real property is to be fried, it would seem to us to be more reasonable that such action is intended to be tried in the county where the real estate is situated. Why declare by the constitution that an action should be commenced in the county where the real property is situated, and then infer from this provision that the action must be fried in a county where it is not situated at the time of the trial, or long prior thereto. Such reasoning from the constitution seems to us to be wholly unwarranted. On the other hand, the spirit of this constitutional provision seems to be that if an action as to real property is to be commenced in the county where the real property is, that it should also be fried in such county.

The commencement of an action does not largely involve the convenience of the parties or witnesses. The complaint may be mailed to the clerk of the court and summons issued and served without the personal attention of the parties at all. But the trial does involve the convenience of the parties and witnesses.

We certainly cannot hold that the constitutional provision which requires an action to be commenced in the county where the real property is, also intends to require that action should be fried in that county, when the real property is no longer therein.

We therefore think that section 56 of the Code of Civil Procedure is not in conflict with section 11, article VIII, of the constitution, in its application to the facts in this case. Section 56 of the Code of Civil Procedure is as follows:

“Sec. 56. Except when otherwise provided, actions for the following causes shall be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, as provided in this act: 1. For the recovery of real property, or of an interest therein, or for the determination in any form of such right or interest, and for injuries to real property; 2. For the partition of real property; 3. For the foreclosure of~a mortgage on real property. Provided, That where such real property is situated partly in one county and partly in another, the plaintiff may select either of said counties, and the county so selected shall be the proper couuty for the trial of any or all of such actions as are mentioned in this section.”

Therefore, section 56 designates the place of the trial of this action as in Flathead county, for it is there that the land is situated. But defendants, when they came to appear in the case, found that the action was in a county other than that in which the land was situated. They found that the action was in the wrong county. Consulting the statute they found sections 61 and 62 of the Code of Civil Procedure, as follows:

“Sec. 61. If the county in which the action is commenced is not the proper couuty for the trial thereof the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears and answers or demurs, files an affidavit of merits, and demands, in writing, that the trial be had in the proper county.

“Sec. 62. The court may, on good cause shown, change the place of trial in the following cases: 1. When the county designated in the complaint is not the proper county.”

The defendants were timely in making their motion for change of venue, that is, at the time when they appeared. They then found that under the facts as they existed, that is, the land being in Flathead county and not in Missoula county, that the county designated in the complaint was not the proper county. These were the conditions existing at the time the defendants appeared. (Wallace v. Owsley, 11 Mont. 219.) It is true that these conditions did not exist when the complaint was filed, but were brought about by reason of the act of the legislature cutting off a part of the territory of Missoula county and placing the same within Flathead county, which territory included the real property in question in this action. And here counsel for respondent urge the applicability of section 209, General Laws, Compiled Statutes, which is in part as follows: “No action, plea, prosecution, civil or criminal, pending at the time any statutory provision shall be repealed, shall be affected by such repeal, but the same shall proceed in all respects as if such statutory provisions had not been repealed.”

Counsel contend that under this section of the statute the action must proceed in Missoula county, because it was pending there when Flathead county was created, and that the act of the legislature creating Flathead county could not affect the action then pending in Missoula county. But we are of opinion that the act creating Flathead county did not, in the language of said section 209, affect the action pending in Missoula county. It did not affect the action, or have to do with the action at all. It simply worked the result of changing the proper place of trial to the new county. No rights in the action, no pleas or defenses therein, were affected. By reason of the creation of Flathead county, and by reason of a change of venue, if it were granted, the action would simply be picked up in its entirety, taking all its parts and attributes, and transported to the place of trial intended by the constitution and the laws.

We are of opinion that the effect and intent of said section 209 is to preserve the action as it existed; that it shall not suffer in its validity, and that all the steps taken in the same shall be saved entire.

“Anderson’s Law Dictionary defines an action as follows: ‘The lawful demand of one’s right (3 Blackstone’s Commentaries, 116) in a court of justice. (McBride’s Appeal, 72 Pa. St. 483.)’ Another definition in the same dictionary is: ‘An action or suit is any proceeding for the purpose of obtaining such remedy as the law allows.’ The definition cites Harris v. Phœnix Ins. Co., 35 Conn. 310. In that case the court, speaking of‘suit’ or ‘action,’ says: ‘But by a suit, within the meaning of this provision of the policy (of insurance), is more clearly meant any proceeding in the court for the purpose of obtaining such remedy as the law allows a party under the circumstances.’ Black’s Law Dictionary, under the title of ‘Action,’ gives this definition: ‘The legal and formal demand of one’s rights from another person or party, made and insisted on in a court of justice.’ ” (State v. Newell, 13 Mont. 302.) See this same case last cited for a more full exposition of what an action is. We are of opinion that the action is the proceeding itself, and not the place where the proceeding is tried, and that section 209 refers to the proceeding, and its preservation, as above noted, and not to the place of the trial.

We are of opinion that the motion for a change of venue should be granted. The whole spirit of the constitution, and the laws of this state, and elsewhere, and the decisions of the courts, is to the effect that actions in regard to real property shall be tried in the jurisdiction, or in the geographical division of the jurisdiction, where the land is situated. It is quite true, probably, that in framing the laws as to the place of trial, and the change of the place of trial, there was not within contemplation the particular and peculiar facts of a county being divided at just about the time when a motion for a change of venue could be filed. But we believe that applying the constitution and the laws to the facts as we find them in this case, that the motion should have been granted.

The order of the district court is therefore reversed, and the case is remanded, with [directions to grant the defendants a change of venue to Flathead county.

Reversed*

IluNT, J., concurs.

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Rehearing

ON REHEARING.

De Witt, J.

— The respondent has moved for a rehearing in this case. His counsel have filed a brief in which they earnestly contend that the court erred in its construction of section 209 of the General Laws, Compiled Statutes.

The contention is that we misinterpreted the last paragraph which we quoted from that section, which is as follows: “ But the same [that is the action], shall proceed in all respects as if such statutory provision had not been repealed.”

Whatever there was in the nature of a repeal in the act of the legislature which was before us for consideration was in the fact that the creation of Flathead county out of a portion of Missoula county in effect repealed the former statute which fixed the boundaries of Missoula county. In that sense there was a repeal of a former law. But we think that the word “repeal” is used in section 209 as referring to the statutory provisions which affect the action, and, as we endeavored to state in the original opinion, the fact of changing the place of trial does not in any way affect the action. The action remains in its integrity, with all its rights unimpaired.

Section 209 provides that the action shall proceed in all respects as if such statutory provisions had not been repealed. Counsel argue that, by the view which we have taken of this section, we are required to write words into the section which are not there now; that is to say, that we make it read: “shall proceed in all respects except as to the place of trial, as if such statutory provision had not been repealed.” The italicized words being those which counsel claims that we add. But, on the contrary, we are of opinion that it is the counsel’s position which requires words to be written into the statute which are not there. Instead of reading as it does, counsel would read it: “ The same shall proceed in all respects, and in the same place.” The italicized words being those which we are of opinion counsel must add in order that his construction may prevail. We are satisfied that our original view was correct, and that the place of trial has not to do with the action, and that the statute meant simply to preserve the action as it was, and did not intend to run counter to the whole letter and spirit of the law, which requires actions in regard to real estate to be tried in the county where the real estate is situated, unless the venue is changed from that county, for reasons given in the statute. We think section 209 refers to what may be done, and not where it may be done. The action shall proceed in all respects, etc., but this does not say it shall so proceed in the same place as it would had the boundaries of the county not been chauged. The action shall proceed, but it may proceed in the place where the law directs. The action can proceed in every respect in Flathead county exactly as it could have proceeded in Missoula county. Each county is subject to the same laws, both of statute and decision, and the application of the legal principles would be the same in either county.

This case was originally decided in the absence of the chief justice. The motion for rehearing has been under consideration by the full court, and it is the unanimous opinion of this court that the original decision was correct. The motion for rehearing is therefore denied.

Denied.

Pemberton, C. J., and De Witt, J., concur.