10 Mont. 524 | Mont. | 1891
This appeal is from an order made by the District Court of the Fifth Judicial District, within and for Jefferson County, denying appellant’s motion for a change of the place of trial from said county to the county of Lewis and Clarke. For the purposes of this appeal it is admitted that defendant is a corporation, and has its principal place of business at the city of Helena, county of Lewis and Clarke.
The cause of action alleged in plaintiff’s complaint is to the effect that at a stated time defendant was the owner and in control of a certain railroad lying within the county of Jefferson, used by defendant for the transportation of ores over the same from its mines to its smelter; that plaintiff was in the employment of defendant as brakeman upon certain cars drawn upon and over said railroad by steam motive power; that while in such employment, and in the performance of his duty as such
It is provided in section 61 of the Code of Civil Procedure that “if the county in which the action is commenced is not the proper county 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.” Plaintiff’s counsel in his brief urges the point that such demand was not made at the time of filing the demurrer, and for that reason the motion for change was properly overruled. But the record does not show when the affidavit of merits and demand for change was filed. Nor is there any showing that the motion for change of place of trial was overruled on the ground that the demand was made too late. It is also admitted by counsel that said affidavit and demand, as well as the other papers contained in this record, were used on the hearing of defendant’s motion for a change. For these reasons we do not pass upon that point, but will consider the main question as to the right of defendant to the change demanded.
It is provided in section 59 of the Code of Civil Procedure, that “ actions on contract 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 act.” Counsel for appellant contends that, in view of the peculiar language of the complaint in this action, it must be held to be an action for the breach of a contract relation, and that it does not appear by the terms of the contract, as set forth, where the same was to be performed, and therefore the change demanded
We do not agree with the learned counsel for defendant, that it does not appear from the language of the complaint where the contract set forth therein was to be performed. If plaintiff was employed by defendant in the capacity of brakeman upon its railroad, “lying within the county of Jefferson,” the contract for service must be performed in Jefferson County. Then the injury alleged, and for which plaintiff demands the payment of damages, is also averred as having been committed in Jefferson County. This is an example of those cases of which Mr. Bishop remarks: “There is in the legal field a not well-defined space, within which tort and contract mingle or blend or overlie each other, in ways partly plain and familiar and partly obscure.” (Bishop’s Non-Contract Law, § 72; Bishop on Contract, §§ 183-187, 216, 228.) But in whatever view counsel may regard this action as respects its nature, we do not think defendant is entitled to a change of place of trial on the grounds presented. It is unnecessary to pass upon the point presented, as to the residence of a corporate existence; for should we hold as contended by defendant, still it would not be entitled to a change of place of trial on the ground of residence, for the reasons above set forth. The order appealed from is affirmed, with •costs.
