State ex rel. Hersey v. District Court

90 Minn. 427 | Minn. | 1903

BROWN, J.

Alternative writ of mandamus to the judges of the district court of Ramsey county directing' them to transfer an action pending in that court to the district court of Washington county.

The facts are as follows: The action sought to be transferred to' Washington county was brought in Ramsey county against three defendants, R. F. ITersey, F. R. Plersey, and Jacob Bean, The two Her-seys resided in Ramsey county at the time the action was commenced, and still do-, and defendant Bean resided, and still resides, in Washington county. The summons was served upon defendants E. R. Hersey and Bean on August 26, 1903, who, on September 8, following, united in a demand for a change of venue to Washington county, the residence of Bean. Pursuant to this demand, the clerk of the district court of Ramsey county transferred the files to the clerk of Washington county, but the-proceedings to effect the change of venue were defective, and the district court of that county remanded the cause to Ramsey county. It is conceded that that order was proper, for the affidavit for the change was insufficient. On September 15 the other defendant, R. F. Flersey, was served with the summons in the action;, and, after the cause had been returned from Washington county, on September 24, the three defendants joined in an answer, which was duly served upon plaintiff’s attorneys on that day. The summons having been served upon R. F. Plersey on September 15, his time to answer did not expire until¹ October 5, but he in fact answered with the other defendants on September 24. On September 28 all the defendants united in a new demand for a change of venue to Washington county on the ground that it was the residence of Bean. The court below refused to transfer the action, and. these proceedings followed.

We,are of the opinion that the court below correctly disposed of the question. Our statutes give to a defendant the right to have an action brought¹ against him tried in the county of his residence, but provide that an action brought in a county other than that of his residence may be tried therein unless defendant shall, before the time for answering expires, demand a change to the county of his residence. The purpose of the statute was to prevent an imposition upon defendant by the commencement of an action in a county remote from his residence, and to secure to him the absolute right to insist that it be tried in the county of his residence. He may waive his rights in this respect, and does so when he fails to comply with the statutes in reference to demanding a change to the proper county. In the case at bar defendant Bean lost his right to a change of the place of trial to his own county by his failure to comply with the statutes; and at the time the second demand for a change was made he had no right, under the statutes, to insist upon it, for his right to answer had then long since expired. Defendants Hersey could not demand or ask for a change of venue to Washington county as a matter of right, for they resided in Ramsey county when the action was commenced, and, the right of defendant Bean in this respect having been lost, the change of venue was properly denied.

Whether, in any case, a change is warranted, under the statutes, where defendant insists upon it on the ground of his residence, must depend upon the right of the parties to effect such a change at the time the demand therefor is made. And in the case at bar, for the reason that defendants Hersey could not demand a change at all, they being residents of Ramsey county, and as a change could only be effected on Bean’s right to demand it, and as such right had been lost at the time the second demand therefor was made, no change was effected thereby. It follows that the court below was right in denying the application of relators to' change the venue to Washington county, and it is unnecessary to determine whether “the time to answer expires” when defendant in fact answers, or at the expiration of twenty days from the service of summons upon him.

Writ discharged.