139 Minn. 389 | Minn. | 1918
Upon the petition of relators an alternative writ of mandamus, issued out of this court, directed the judge and clerk of the district court of Waseca county to cause an action begun in said court, wherein J. A. Tyrholm & Company, is plaintiff and Charles Wilkins and the Boyal Indemnity Company, the relators, are defendants, to be transferred for trial to the district court of Hennepin county, Minnesota, or show cause why it should not be done.
It is made to appear that Charles Wilkins now is and for many years has been a resident of Hennepin county. The Boyal Indemnity Company is a New York corporation. The action brought against relators is for the recovery of $165 alleged to be duo for material and labor furnished by said J. A. Tyrholm & Company, in installing, at the request of said Wilkins, an engine in a public school building erected by Wilkins under a contract with a school district in Waseca county. The complaint alleges that Charles Wilkins as principal and the Boyal Indemnity Company as surety had executed to the school district the bond demanded by section 8245, G. S. 1913, to secure the performance of the. contract, as provided by its terms and the statute mentioned. Within 20 days after the service of the summons Wilkins made proper demand for a change to venue to Hennepin county, and both defendants, Riso within said time, made a joint demand for such change. The requests were refused.
The refusal is sought to be justified under sections 7720, 7721 and 8245-8249, G. S. 1913.
Section 7721 provides that actions not covered by sections “7715-7720 shall be tried in a county in which one of more of the defendants reside when the action was begun. If none of the parties shall reside or be found -in the state, or the defendant be a foreign corporation, the action may be begun and tried in any county which the plaintiff shall designate.” The following .section (7722) gives the defendant the right to demand a change of venue when an action is not brought in the proper county under the rules laid down in the preceding sections above referred to.
In view of the fact that it is the policy of our law to accord a resident of this state the privilege of having a transitory action brought against him tried in the county of. his residence (Grimes v. Ericson, 92 Minn. 164, 99 N. W. 621), it is considered that he may not be deprived of this privilege by making a foreign corporation also a party defendant. The provision quoted from section 7721, giving the plaintiff the right to select the county wherein to maintain the action, should be construed to be limited to cases wherein there are no resident defendants. In Healy v. Mathews, 108 Minn. 125, 121 N. W. 428, relied on by respondents, the foreign corporation was the sole defendant, and the action was properly commenced in the county where the plaintiff chose to institute the same.
We do not think there is anything in the sections 8245-8249, G. S. 1913, which necessarily makes an action upon a bond of a public contractor local, instead of transitory.
Let a peremptory writ issue.