Fargo v. Schraudenbach

167 N.W. 492 | S.D. | 1918

GATES, J.

The venue of this action was laid in the circuit ctotort oif Spink county. The principal defendant was a resident of, and served with 'summons, garnishee summons, and affidavit in, Minnehaha county. The garnishee defendant was a resident of, .and served wiith garnishee summons and affidavit in, Spink county. Before the expiration of the time to ‘answer the-complaint the principal defendant demanded in writing -that the venue be changed to Minnehaha county. The circuit' court of Spink county denied .a motioin.' for an order for such change. Therefrom 'the principal defendant appeals. Unless the garnishment statute (.chapter 156, Law© 1909) has modified section 101, C. C. P., as amended by chapter 150, Laws 1915, and § 102, C. C. R, as amended by chapter 177, Laws 1913, the principal defendant was entitled as a matter of right to the desired change. Smail v. Gilruth, 8 S. D. 287, 66 N. W. 452; George v. Kotan, 18 S. D. 437, 101 N. W. 31; Ivanusch v. Great Northern Ry. Co., 26 S. D. 158, 128 N. W. 333.

[1] A careful study of chapter 156, Laws 1909, fails to disclose .3 legislative intent to thereby modify the two. sections of the Code of Civil Procedure .above referred to. While section 15 of said garnishment chapter describes the garnishment proceeding a® an action, yet the Legislature did not malee all provisions *430•of. -law 'relative to .proceadfingg in civil actiotís' applicable thereto. Thait section says (the italics are ottrs) :

“Aniel! aB provisions' otf1 law relating to proceeding's in- civil actions at issue, * * * shall be applicable thereto.”

[2] 'Inasmuch, as the sitepfe to be taken for a changa of venue upon the ground set forth in like present application could only be taken before the cause was “at issue,” 1a clear legislative intent was m'anifeste'd nolt to repeal the said' sections of .the Oode oif Civil Procedure by tlhe 'garnishment chapter. Moreover, a garni'Slhmenit plroceed/inig is an ancillary .proceeding ttoi tíre main action, and is to be cials’sed! as an additional provisional remedy to those given by dhaipiter 11 of Code of Civil Procedure. See Comp. L. North Dakota, §§ 7487, 7567-7587; 20 Cyc. 979. The venue 'of the -main action can no more toe controlled thereby than it could in tine case Of aittadilment proceedings.

The Order appealed from is reversed, wiiitlb diiirectioinis' to grant the change o!f venue apiplied for.