209 N.W. 270 | Minn. | 1926
The purpose of the action was to have the court decree that Butler Bros. held the lease as trustee for the Quinn Company and to require the transfer thereof to that company.
The action was begun in Itasca county where the land is situated, but the venue was changed to Ramsey county upon the demand of the defendants, pursuant to G.S. 1923, § 9215, and plaintiff's subsequent application to have the case remanded to Itasca county was denied. Upon his petition this court directed the district court of Ramsey county to show cause why a peremptory writ of mandamus *465 should not issue to compel the return of the record and files to Itasca county for the trial of the action in that county, and the matter has been submitted by both parties on the briefs of counsel.
It is the contention of the relator that this action is local within the meaning of G.S. 1923, § 9207, while the respondents contend that it is transitory and subject to the provisions of G.S. 1923, §§ 9214, 9215. If the action is local, the court was wrong in denying the relator's application; but if it is of a transitory nature the court was right.
1. The test by which to determine whether an action is local or transitory is well stated in State v. District Court,
Applying this test, we conclude that the subject matter of this action is not wholly local. True, a leasehold interest in land is involved and plaintiff is seeking to acquire it for the corporation in whose right he sues. But the primary purpose of the action is to have it determined that the directors of the Quinn Company took the lease in the name of Butler Bros. in breach of their fiduciary duty to the Quinn Company and to serve their own selfish ends as owners of the stock of Butler Bros. To prevail on the theory upon which the complaint is framed a trust ex maleficio must be established, and in this respect the case resembles W.B. Foshay Co. v. Mercantile Trust Co.
Counsel for relator have collected and carefully analyzed cases from other jurisdictions, but we think it unnecessary to mention *466 them, for the question is one of local practice which has become settled by our own decisions.
2. The point is made that, under G.S. 1923, § 9523, the court may properly transfer the lease from Butler Bros. to the Quinn Company by judgment, hence the suit is one in rem and not in personam and must be tried in the county where the res is situated. Smith v. Smith,
In the case at bar all the defendants are within the state and subject to the jurisdiction of its courts, and the judgment, if one is obtained, may be enforced by proceeding against them in personam. Moreover it appears from the complaint that the suit was brought on the theory that the lease may be reached by a decree in personam, a theory which seems proper in view of the facts pleaded.
We are of the opinion that the court below ruled correctly in refusing to remand the case to Itasca county, and the application for a writ of mandamus is denied and the order to show cause discharged. *467