State ex rel. Winegar v. District Court

150 Minn. 496 | Minn. | 1921

Lead Opinion

Per Curiam.

Procedure tó procure a writ of mandamus directing the district court of Waseca county to retain the action hereinafter referred to in that county for trial.

In October, 1920, Frank Winegar brought an action based upon contract in the district court of Waseca county, against J. E. Martin, Mike Stopa and three other persons as defendants. Martin resided in Hennepin county and the other defendants in Waseca county. Martin and Stopa answered separately. The other defendants did not answer, nor does it appear that they were served.

Upon the call of the calendar at the opening of the regular January, 1921, term of court in Waseca county, the case was set for trial, without objection, the attorneys for the answering defendants being present. Five days later the defendant Martin gave notice to plaintiff of a motion for change of venue to Hennepin county, upon the ground that all the persons named as defendants, other than himself, were made parties to the action for the sole purpose of preventing a change of venue. The matter was argued, submitted and an order filed granting the motion. An appeal therefrom was taken to this court where it was held that the order was not appealable and the appeal was dismissed. Winegar v. Martin, 148 Minn. 489, 182 N. W. 513.

Thereafter this proceeding in mandamus was brought to review the order of the trial court so changing the venue on defendant’s motion. The only question presented on the merits of the appeal is whether the findings of the trial court that the defendant Stopa was made a party defendant to prevent a transfer of the cause to Hennepin county, are sustained by the evidence. The affidavits have been fully considered, and we reach the conclusion that the decision of the trial court is justified thereby.

In taking leave of the case we hold that the procedure here adopted was proper. The venue was not changed by the demand of the defendant Martin that the cause be transferred to Hennepin county. ' But the court, subsequent to the demand, made an order changing the venue to that county on the ground heretofore stated, namely, that Stopa was made a defendant solely to prevent a change on the demand of defendant Martin. In that case the procedure here adopted in review of that order is proper. It would be different in a case where the demand itself affects the change of venue. The order is affirmed.

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Concurrence Opinion

Dibell, J.

(concurring).

I concur upon the ground that State v. District Court, infra, page 198, settles the question of the propriety of mandamus.