Alderman v. New York Underwriters' Ins. Co. of New York

• Decision Date: 01 May 1933
• Docket Number: 7248,7258.
• Parties: ALDERMAN v. NEW YORK UNDERWRITERS' INS. CO. OF NEW YORK. SAME v. HOME INS. CO. OF NEW YORK.
• Court: South Dakota Supreme Court

248 N.W. 261

61 S.D. 284

ALDERMAN v. NEW YORK UNDERWRITERS' INS. CO. OF NEW YORK.

SAME v. HOME INS. CO. OF NEW YORK.

Nos. 7248, 7258.

Supreme Court of South Dakota

May 1, 1933

Appeal from Circuit Court, Charles Mix County; A. B. Beck, Judge.

Actions by J. Rex Alderman against the New York Underwriters' Insurance Company of New York and against the Home Insurance Company of New York, respectively. Judgments for plaintiff and defendants appeal.

Affirmed.

Boyce Warren & Fairbank, of Sioux Falls, for appellant Home Ins Co.

L. E Waggoner, of Sioux Falls, for appellant New York Underwriters' Ins. Co.

Caster & Baker, of Lake Andes, and E. E. Wagner, of Pierre, for respondent.

RUDOLPH Presiding Judge.

Two actions have been consolidated, tried, and briefed on appeal as one. Separate findings and judgments were entered in each action. Two policies of insurance against fire, one covering the fixtures and the other covering a building located in Gregory county, were issued by appellants. A fire occurred and the building and fixtures were partially destroyed on the 9th day of September, 1928. On July 9, 1929, the plaintiff commenced these separate actions against the defendants and appellants by serving a summons and complaint on the commissioner of insurance, and laid the venue of such actions in Charles Mix county, and the actions were tried in that county. The defendant New York Underwriters' Insurance Company first moved to make the complaint of the plaintiff more definite and certain, after which an amended complaint was served. It then demurred to the amended complaint upon the grounds "that the circuit court of Charles Mix county has no jurisdiction of the person of the defendant or the subject of the action." This demurrer was overruled, and the defendant New York Underwriters' Insurance Company answered to the merits. The appellant Home Insurance Company first answered to the merits and then moved to dismiss the action for the reason: "That said action to recover is one brought on a policy of insurance to recover for loss and damage to the property insured, and that section 2325 of the Revised Code of the State of South Dakota provides that all such actions shall be tried in the county wherein such property insured is situated, at the time of its loss or damage, and for the reason that the said property insured was, at the time of the alleged loss and damage, situated in the county of Gregory, state of South Dakota." This motion was denied. At the trial of the case both appellants objected to the introduction of any evidence, "for the reason that the court has no jurisdiction to hear and determine the issues herein involved, for the reason that the action is a local action arising in a county other than the county of Charles Mix, brought, as the complaint shows, to recover upon a policy of fire insurance, the destruction of the property being in another county, and hence the complaint states facts sufficient to show the court has no jurisdiction." The foregoing presents a question of procedure, which we will consider at this time and dispose of before getting to the merits of the case.

It is the contention of the appellants that the circuit court sitting in Charles Mix county has no jurisdiction to try this case.

Section 2325, Rev. Code 1919, provides:

"Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial in the cases provided by the statute: * * *

"5. All actions brought on a policy of insurance to recover for loss or damage to the property insured shall be tried in the county where such property is situated at the time of its loss or damage."

Section 2328, Rev. Code 1919, provides:

"If the county designated for that purpose in the complaint be not the county in which the defendant resides, the action may, notwithstanding, be tried therein unless the defendant, before the time for answering expires, demand in writing that the trial be had in the county in which he resides, and the place of trial be thereupon changed by consent of the parties or by the order of the court, as provided in this section. If the county designated is not the proper county and where the court changes the place of trial on account of the action having been brought in the wrong county, the court, in its order granting the change of place of trial, may in its discretion allow to the moving party such terms as to it may seem just; and in case of a dismissal of the action or change of place of trial, the payment of the amount awarded by the court shall be made a condition precedent to the commencement of another action or the further prosecution of the action where change of place of trial has been granted. The court may change the place of trial in the following cases:

"1. When the county designated for that purpose in the complaint is not the proper county.

"2. Where there is reason to believe that an impartial trial cannot be had therein.

"3. When the convenience of witnesses, and the ends of justice would be promoted by the change."

Prior to 1909 this last-quoted provision of our Code read as follows:

"If the county designated for that purpose in the complaint be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant, before the time for answering expire, demand in writing that the trial be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court, as provided in this section. The court may change the place of trial in the following cases:

"1. When the county designated for that purpose in the complaint is not the proper county.

"2. When there is reason to believe that an impartial trial cannot be had therein.

"3. When the convenience of witnesses and the ends of justice would be promoted by the change." Comp. Laws 1887, § 4891.

In construing these two sections, as they appeared prior to 1909, the territorial Supreme Court, in the case of Territory v. Judge of District Court, 5 Dak. 275, 38 N.W. 439, said: "We think that the latter section is a qualification of the former, and that the court had jurisdiction; that the statute is merely directory with respect to the place of trial; and that the defendant simply has a personal right to insist upon those actions which are denominated as local, being tried in the county in which the subject-matter is situated, and which right the defendant to the action may waive, and in this case has waived, by his default. The statutes of New York, California, Minnesota, and Wisconsin are very similar, if not precisely similar, to ours. March v. Lowry, 16 How. Prac. [N. Y.] 42; Lane v. Burdick, 17 Wis.97; Gill v. Bradley, 21 Minn. 15; O'Neil v. O'Neil, 54 Cal. 187."

Thus in this early case this section in our Code, which now appears as section 2325, was held to be a venue statute only, and as conferring only a personal right upon the defendant to insist that the action be tried in the county in which the subject-matter is situated, and this is the general holding: "On general principles, and construing the statutes of venue as a whole, the courts have repeatedly held that enactments which fix the venue of a domestic cause in the county in which the subject of action is situated, although perhaps imperative in their terms, are neither jurisdictional nor mandatory, but give to the party, even when sued for real estate, the privilege of having the litigation conducted in the county in which the land lies." 40 Cyc. 41.

The appellant contends, however, that under the wording of section 2328, as it now appears, the rule should be different. We do not agree to this contention. The change in wording in section 2328 does not change section 2325 from that of a venue statute to a statute conferring jurisdiction. Section 2325 still remains in its original form, refers only to the place of trial, and is a venue statute only. Under subdivision 1 of section 2328, as it now appears, there is specifically reserved to the defendant the personal privilege of having the place of trial of action changed "when the county designated for that purpose in the complaint is not the proper county." Appellants rely to some extent upon what they call the "bank cases." Hanson v. Sogn, 50 S.D. 44, 208 N.W. 228; Wasson v. Hirning, 50 S.D. 482, 210 N.W. 725; Spratt v. Citizens' State Bank, 50 S.D. 472, 210 N.W. 676; Fergen v. Lonie, 51 S.D. 315, 213 N.W. 720. However, in the case of Dockstader v. Hirning, 50 S.D. 264, 209 N.W. 542, 543, another of the so-called "bank cases," this court pointed out the distinction between these cases and the ordinary case. The court said: "In the ordinary case the circuit court of the county where the action is brought has jurisdiction to try and determine the case if an application for change of venue is not made. In these insolvent bank matters the legislative intent is that the circuit court of the county of the bank's domicile alone has jurisdiction to wind up its affairs."

We conclude that the circuit court of Charles Mix county had jurisdiction of these cases, and no application for a change of venue having been made, there was no error in the court proceeding to decide the cases on their merits.

The facts are without any material dispute and are as follows John N. Ellerman was the local agent at Fairfax, S. D., for both defendant companies, and was duly authorized by the commissioner of insurance to act as such agent. As such agent, he issued both policies of insurance here involved, which were standard fire insurance policies and contained a mortgage clause as follows: "Loss, if any, payable to J. M. Brophy, mortgagee, as his interest in...