213 P. 210 | Mont. | 1923
delivered the opinion of the court.
The only error assigned is that the district court erred in transferring this cause from Missoula county to Powell county for trial.
The action is to recover for personal injuries sustained by
At the time of the accident the plaintiff was and had been for thirty years a resident of Missoula county. The complaint was filed in Missoula county, and the defendant was served with summons there. Upon defendant’s motion the cause was transferred to Powell county. The motion was based upon the fact that the accident occurred in Powell county and plaintiff’s cause of action, if any, arose there. Trial resulted in favor of defendant. Plaintiff appeals from the judgment.
It is conceded by plaintiff that the ruling of the trial court is sustained, in terms at least, by the decision of this court in State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 Pac. 1030. In that ease, which arose upon contract, the court had under consideration the following portion of sec-tion 6504, Revised Codes of 1907, now section 9096, Revised Codes of 1921: “Actions upon contracts may be tried in the county in which the contract was to be performed, and actions for torts in the county where the tort was committed; subject, however, to the power of the court to change the place of trial as provided in this Code.” After an exhaustive analysis of this provision in comparison with the context in section 6504, and as that section relates to companion sections, the court held that the word “may” should be given the force of “must.” Counsel say this holding was obiter because unnecessary to the conclusion and decision of the cause then before the court. They say, further: “We believe that all the cases along this line which this court has decided were correctly decided.
The judgment is affirmed.
Affirmed.