231 P. 395 | Mont. | 1924
By this proceeding relator seeks a writ of supervisory control designed to annul an order of the district court denying his motion for a change of place of trial.
Suit was brought in Valley county against the defendant as[1] sheriff of McCone county. Summons was served upon him in McCone county. If the defendant, sued as he was in his official capacity, pursued his statutory remedy he was entitled to have the case tried in the county of which he was a public officer. (Sec. 9094, subd. 2, Rev. Codes 1921.) At the *58 [2] outset we are confronted with the question whether he did sufficiently comply with the statute. The record discloses that within twenty days after the service of summons upon him he filed what purported to be an affidavit of merits, and with it a notice in which, through his counsel, he advised the plaintiff and plaintiff's attorneys that upon a date named, "or as soon thereafter as counsel could be heard," he would move the court for an order changing the place of trial of the action from Valley county to McCone county. With the notice of motion he filed also what he denominated a "motion" which conformed in substance to the language of the notice of motion.
In section 9097, Revised Codes of 1921, it is provided: "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."
The next section (9098) provides that the court or judge must, on motion, change the place of trial when the county designated in the complaint is not the proper county. These are companion statutes and must be construed together. (Danielson v.Danielson,
California and Nevada have statutory provisions similar to our own and such seems to have been the consistent holding of the appellate courts of those states.
The supreme court of Nevada, in Elam v. Griffin,
In Estrada v. Orena,
The filing of the affidavit and demand do not operate ipso[3] facto to change the place of trial. The court can act only upon motion. (Sec. 9098, supra; State ex rel. Gnose v.District Court,
Notice of the motion must be given by the moving party to his adversary in writing under the provisions of section 9778, *60 Revised Codes of 1921. The notice must apprise the adversary that the movant will at a time and place make application to the court or judge for an order changing the place of trial, and should state with reasonable certainty the grounds of the motion. "An application for an order is a motion." (Sec. 9772, Rev. Codes 1921.)
As has been adverted to above there is a clear distinction between the filing of the affidavit and demand and the notice of motion; a notice of motion does not supply the defect caused by failure to file the demand.
The notice of motion need not be filed simultaneously with the affidavit and demand (Lundy v. Lettunich,
Here counsel for defendant followed the course above indicated: He filed his notice of motion in which, however, he stated the grounds upon which he proposed to move the court for an order changing the place of trial of the action from Valley county to McCone county, and also filed a "motion" in which the same grounds are set forth and in practically identical words. The two were companion documents and did not purport to serve any purpose other than the procurement *61 of the order. The "motion" was not a demand either in form or in substance. The idea that either the notice of motion or the motion served to supply the demand in writing required by the statute is illusory.
One reason why we entertained the application for a writ of supervisory control in this case was based upon the assertion of[4] counsel for relator that in view of certain language appearing in Feldman v. Security State Bank,
So that, in the instant case, had the court erred against the defendant, in the event of a judgment against him he was afforded a remedy by appeal. Further discussion upon this phase of the case is unnecessary.
By reason of the fact that the relator in omitting to file a demand in writing did not pursue his statutory remedy he was not entitled to a change of place of trial and the court correctly denied his application therefor. *62
The application for a writ of supervisory control is denied and the proceeding dismissed.
Dismissed.
ASSOCIATE JUSTICE RANKIN, HOLLOWAY and STARK concur.
MR. JUSTICE GALEN, absent on account of illness, did not hear the argument and takes no part in the foregoing decision.