129 Minn. 240 | Minn. | 1915
Plaintiff began this action in tbe district court of Benton county, alleging in bis complaint, in substance, tbat be was tbe son and sole beir of Swan Hjelm, wbo died intestate in 1913; tbat in September, 1912, Swan Hjelm was tbe owner of two lots in East St. Cloud, Benton county, Minnesota; tbat while such owner be became ■ non compos and subject to insane delusions as to bis property; tbat, while in this condition, to tbe knowledge of tbe officers and agents of tbe city of St. Cloud, they fraudulently induced him to deed said lots to the city without any adequate consideration; tbat said lots were procured by tbe city for investment and speculation; tbat after procuring tbe deed tbe city took possession, and does now entirely exclude plaintiff from possession and from participation in tbe rents and profits derived from tbe lots, tbe same being improved; and plaintiff demands judgment for cancelation of tbe deed, that be be decreed tbe owner and entitled to possession of tbe premises, and for such further relief as be may show himself entitled to. Defendant demurred on tbe ground tbat tbe district court of Benton county bad not jurisdiction of defendant or of tbe subject of tbe action. Plaintiff appeals from tbe order sustaining tbe demurrer.
Tbe defendant suggests as a preliminary question, tbat plaintiff’s ownership is insufficiently alleged — tbat tbe averment tbat be is tbe sole beir is a mere legal conclusion. As against tbe grounds specified for demurring we do not think tbe complaint fatally defective. It alleges plaintiff to be a son of Swan Hjelm, wbo died intestate, and tbat defendant entirely excludes plaintiff from tbe possession of tbe property wrongfully and fraudulently obtained from plaintiff’s father, and from all rents and profits derived therefrom.
Should tbe demurrer have been sustained on tbe ground tbat tbe
But, as we view the matter, the language found in the original charter granted by the legislature to defendant and carried over verbatim, into section 275 of its present charter should be held to apply to transitory actions and proceedings, including those arising in the carrying on of defendant’s governmental function, and should not control those actions which, in equally strong terms, the legislature by general law, have assigned to a local forum. Section 7715, G. S. 1913. Construing the complaint to allege sufficiently plaintiff’s ownership of the lot, we think the action is one for the recovery of real estate properly brought and triable in Benton county where'the lots are situated. As to subject matter the action is the same as disclosed in State v. District Court of Big Stone County, 120 Minn. 526, 139 N. W. 613. See also Kommer v. Harrington, 83 Minn. 114, 85 N. W. 939. Our conclusion is that the general law governs the venue in this case wherein real estate is sought to be recovered, and the demurrer should have been overruled.
Order reversed.