Yore v. Murphy

10 Mont. 304 | Mont. | 1891

De Witt, J.

Respondent contends that the last sentence of section 59 fixes the place of trial in Cascade County, and retains it therein, while appellant insists upon his right to the change.

It is necessary to determine whether the action is in contract or in tort. For, if in contract, it seems that the face of the contract must disclose that it was to be performed in the county in which the action was commenced, in order to lay and retain the venue in that county. But we need not decide that point, for we are of opinion that the action sounds in tort. In actions growing out of the taking or retaining of personal property, the pleader may declare in replevin, or in conversion, or may waive the tort, and sue upon an implied contract. It is sometimes difficult to determine which course the pleader has intended to pursue. But in this case we believe that it is determinable. There is a clear allegation of a wrongful taking in one cause of action, and a wrongful detaining in the other. In each, there is an allegation of conversion, and in each, a statement of damages to plaintiff. Sh'e demands a judgment for the amount in which she says she is damaged, which amount she lays at the value of the property at the time of conversion, and interest. The whole tenor of the complaint leads to the conclusion that the action is in tort. Then, as to the piaee of its commission. The tort, set up in the first cause of action, is explicitly alleged to have been committed in Cascade County. The second cause of action, for tort also, is separately stated. It nowhere appears in the complaint that this alleged tort was committed in Cascade County. We have before us no other source of information. We have no knowledge that the second tort complained of was committed in Cascade County.

Counsel have argued the construction of the last sentence of section 59, in connection with the previous portion of that section. But it is not necessary, in this decision, to construe those provisions. It may be assumed, for the purposes of the case, as now before us, that the plaintiff has the right to have an action for tort tried in the county where it was committed, notwithstanding the residence of defendant in another county, and his service therein.

In this complaint two causes of action are joined. In one it appears, by the complaint, that the tort was committed in Cascade County. In the other it does not so appear. Therefore, as far as this court is informed by the record, defendant has the right (§ 59) to have the second cause of action tried in Lewis and Clarke County, the county of his residence and of service upon him; and this right is not modified by the fact that this second alleged tort was committed in Cascade County, for it does not appear that it was there committed. And if defendant has the right to have the second cause of action tried in Lewis and Clarke County, plaintiff cannot abridge this right by joining in his complaint another cause of action (the first in the complaint), which might bo properly construed as triable in Cascade County. This position is thoroughly and satisfactorily discussed in Ah Fong v. Sternes, 79 Cal. 30. See, also, Sayward v. Houghton, 82 Cal. 628.

In consideration of the facts before the District Court, we are of opinion that defendant’s demand for a change of venue should have been granted. It has been so held in Williams v. Keller, 6 Nev. 141, and Watkins v. Degener, 63 Cal. 500. The statutes of those States are similar to section 59, except that the last sentence is omitted. As that last sentence is in no way before us for construction, these cases last cited are in point, and we are satisfied with their reasoning.

It is therefore ordered that the order appealed from be reversed, and the case is remanded to the District Court, with directions to make an order transferring the case to Lewis and Clarke County.

Blake, C. J., and Harwood, J., concur.