272 N.W. 783 | N.D. | 1937
The plaintiff, for and on behalf of the workmen's compensation bureau, brought action in the district court of Burleigh county to recover from the defendant, a resident of Richland county and engaged in business therein, premiums and accrued penalties alleged to be due from defendant as an employer. Within due time defendant made demand for change of the place of trial to the county of his residence. Demand was refused. The district court of Burleigh county denied a motion for change of venue, and from this order the defendant has appealed.
Under the provisions of chapter 315 of the Session Laws of 1931 an employer in default in the payment of his premiums is subject to penalties, and the statute provides that
"Within twenty (20) days after any such default the Bureau shall cause suit to be brought for the collection of the premium and accrued penalties, together with further accruing penalties, in the courts of Burleigh County, North Dakota, or in the courts of any county in which such employer is engaged in business; . . . ."
It is the contention of appellant that this statute cited does not modify in any manner the general law with reference to theplace of trial of civil actions.
The term "cause suit to be brought" as used in the statute means merely "commence" or "begin." Ledonne v. Commerce Ins. Co.
The term "suit" as used in this statute is a comprehensive one and is synonymous with "action." It is the proceeding brought to enforce collection of the claim. See Philadelphia R. Coal I. Co. v. Chicago,
Sections 7415 to 7419 of the Compiled Laws deal with "the place of trial of civil actions." The law governs the place where the action is brought and the place where the action must be tried. They are separate propositions. These sections provide that in such a matter as the collection of money due, "The action shall be tried in the county in which the defendant or some of the defendants reside at the time of the commencement of the action; . . . ." (§ 7417).
Were it not for the limitation in this chapter 315, the bureau could have brought this action in any county in the state and the action would be triable therein unless a change of venue was demanded, as § 7418 provides: "If the county designated for that purpose in the complaint is not the proper county, the action may, notwithstanding, be tried therein, unless the defendant before the time for answering expires demands in writing that the trial be had in the proper county and the place of trial be thereupon changed. . . ." See Agricultural Credit Corp. v. Land Invest. Co.
Change of place of trial under this section is mandatory when the defendant has brought himself within the terms of the statute. State v. Bloom,
An action for the recovery of money only is ordinarily transitory in nature and in contemplation of law has no locality. Central Maine Power Co. v. Maine C.R. Co.
At common law all actions, local or transitory, were tried where the fact arose. Later, distinction arose between local and transitory and the latter followed the defendant wherever he went. Then transitory actions were localized in a measure, and today the whole theory of *440
such actions is that if "both parties reside in the county the action must be brought there. . . . Otherwise the action follows the defendant? Haynes v. Woods,
The power of the legislature to say in what county a civil action is to be tried is undoubted. See People v. Syracuse,
In Security Loan T. Co. v. Kauffman,
The statute limits the bureau to a choice between the courts of Burleigh county and the courts of any county where the "employer is engaged in business." Respondent urges that as without this statute the bureau could have brought the action in the courts of Burleigh county or of the county in which the employer was engaged in business, the legislature must have intended that the action should also be tried therein; otherwise the legislation is meaningless. But these are the counties where the necessary records of the plaintiff and the defendant will ordinarily be found; and so a limitation is placed. The employer is not to be harassed unduly nor dragged into any county the plaintiff may choose.
While the bureau is limited in its choice of counties, the statute makes no reference to the trial or the defendant's right to demand a change of the place of trial. It is not sufficient to infer the legislature must have intended to limit the place of trial also.
A statute specifying the place where an action is to be brought must be construed with reference to other statutes concerning the same general system of legislation. Where there is a general statute governing the place where an action must be tried, such statute is not amended or repealed by the enactment of a statute which says that an action must be "brought" in a certain county, unless this later statute can not reasonably be otherwise construed. *441
The statute does not refer to the place of trial as does the law dealing with jurisdiction of justices of the peace (Comp. Laws, § 9017) which states where "a civil action in justice's court must be commenced and tried. . . ." Even if the constitution of a state provides where an action involving "recovery of the possession of land must be commenced," this does not prohibit a change of place of trial. As shown in Hancock v. Burton,
We can readily differentiate California S.R. Co. v. Southern P.R. Co.
The law specifying where the action should be "brought" coincided with the law specifying where an action involving land should be "tried."
Respondent nowhere contends that the statute authorizing change of venue for the convenience of witnesses is not applicable to such an action as this and we see no reason for assuming, in the absence of express legislation to that effect, that the legislature intended by the enactment of this chapter 315 to abrogate the general law authorizing change of place of trial to the county of defendant's residence on other grounds. Neither of the counties to which the bureau is limited may be the county in which the employer resides, and there is no intimation in this chapter 315 that the general law with reference to change of venue has been suspended in such a case as this. Unless the statute involved is so unambiguous as to permit but one *442
reasonable interpretation, then it must be construed in connection with other legislation covering the same general subject. Wishek v. Becker,
Significance attaches to the difference in the language used — between "must be commenced in a certain county," "may be commenced and maintained," and "commenced and tried." Section 7415 of the Compiled Laws provides that certain actions "must betried in the county in which the subject of the action . . . is situated;" § 7416 provides that certain actions "must be tried in the county where the cause or some part thereof arose;" and § 7417 provides that the "action shall be tried in the county in which the defendant . . . resides." This chapter 315 says "causesuit to be brought." In Latham v. Latham,
To give to this law the interpretation advocated by the plaintiff might cast some doubt upon the constitutionality of the statute as by § 69, subdivision 8 of the Constitution the legislative assembly is forbidden to pass local or special laws "providing for changes of venue in civil or criminal cases." We are not inferring that proper interpretation would classify this statute as a "local or special" law. Nevertheless, the court should give the law such interpretation as will remove possibility of doubt.
The law dealing with the place of trial is still intact. Subsequent *443
legislation does not amend it unless there be such "positive repugnancy between the provisions of the new law and the old (as), to work a repeal by implication; and even then the old law is repealed only to the extent of such repugnancy." Schaffer v. State,
Chapter 315 of the Session Laws of 1931 does not prevent a change of the place of trial to the county where defendant resides, and therefore his motion should have been granted.
CHRISTIANSON, Ch. J., and NUESSLE, BURKE, and MORRIS, JJ., concur.