122 Minn. 377 | Minn. | 1913
This is an appeal by plaintiff from an order of the district court for Waseca county, striking the case from the calendar of that court, and directing the clerk thereof to transfer all the files and records in the action to the clerk of the district court for Hennepin county. The ground upon which the order was asked for and granted was that the place of trial of the action had been changed by the filing of an affidavit and demand for change of venue.
The sole question here is whether the place of trial had been changed to Hennepin county by the filing of the affidavit and demand. The action was against defendants jointly. Defendant Miller Liquor Company is a corporation having its office and principal place of business in Minneapolis. Defendant Paulson is a resident of Waseca county. The demand was made by defendant Miller Liquor Company, and was accompanied by an affidavit of one of its officers, and another affidavit of one of its attorneys; each affidavit was to the effect that the liquor company was a resident of Minneapolis, the
The trial court held that, because the number of defendants in the ■ease was equal, the trial should be held in the county of the one whose ■county seat was nearest to his place of residence. And, because the liquor company had its place of business in Minneapolis, the ■county seat of Hennepin county, and Paulson lived 12 miles from the city of Waseca, the county seat of his county, the place of trial had been changed by the filing of the demand and affidavits. This holding was based upon the following language of R. L. 1905, § 4096:
“If there are several defendants residing in different counties, the trial shall be had in the county upon which a majority of them unite in demanding, or, if the numbers be equal, in that whose county seat is nearest.”
We are unable to sustain the view taken by the trial court. The •provision quoted has no application where there are but two defendants, and one of them resides in the county in which the action is brought, and does not join in the demand for a change of venue. The italicized language quoted seems to have been added by the revision, as it is not found in Laws 1895, p. 147, c. 28, or Laws 1903, p. 627, c. 345. Its meaning is not entirely clear, but it was apparently intended to provide for a case where a majority of the defendants demanded a change of venue, and were not able to agree upon the ■county. It has never been the law in this state, prior to 1905, that less than a majority of the defendants in a case could obtain a change •of venue by making the demand and affidavit. We cannot presume that the revisers or the legislature intended to authorize a change of the place of trial, in a case where the action is brought in the county where one of the two defendants resides, upon the demand and affidavit of the nonresident defendant alone, the right to effect the ■change being dependent upon whether the nonresident defendant resides nearer to his county seat than the resident defendant does to
There is no doubt that the venue would have been changed ipsofacto if the affidavit made out a prima facie case, but the affidavits-here showed on their face that a majority of the defendants did not demand the change. It follows that no change was effected, and that, the case was still in Waseca county.
Order reversed.