Cannon v. Tuft

• Decision Date: 07 July 1955
• Docket Number: No. 8292,8292
• Citation: 3 Utah 2d 410,285 P.2d 843
• Parties: d 410 George N. CANNON, d/b/a Intermountain Supply Company, Plaintiff and Respondent, v. B. K. TUFT, Defendant and Appellant.
• Court: Utah Supreme Court

Page 843

285 P.2d 843

3 Utah 2d 410

George N. CANNON, d/b/a Intermountain Supply Company Plaintiff and Respondent, v. B. K. TUFT, Defendant and Appellant.

No. 8292.

Supreme Court of Utah.

July 7, 1955.

Tex R. Olsen, Richfield, for appellant.

George M. Cannon, Salt Lake City, for respondent.

CROCKETT, Justice.

This appeal involves the use of the motion to dismiss to object to improper venue. We hold that the motion to dismiss is inappropriate for such purpose.

Plaintiff commenced suit on a contract in the District Court for Salt Lake County, the complaint showing on its face that the defendant was a resident of Salina, Utah, in Sevier County. Plaintiff admits on this appeal that proper venue would have been Sevier rather than Salt Lake County.

Defendant filed a 'Motion to Dismiss for Improper Venue,' which the court denied. Notice of the denial was mailed to defendant September 9, 1954, and before defendant had filed his answer to the complaint a default judgment was taken against him one day before time for answer had elapsed.

Defendant thereafter filed a motion to vacate the default judgment on the ground that the judgment was void. At the same time he moved for a rehearing of his motion to dismiss, concluding thus:

'If this Honorable Court determines that venue cannot be raised by a motion to dismiss, Defendant prays leave to file the proper motion and to be heard by the Court upon such motion. * * *'

The motion for rehearing was denied, but the court did order the default judgment vacated 'upon the condition that the defendant serve and file an answer to the complaint within ten days. * * *'

Defendant thereupon answered, raising as a 'First Defense' improper venue, and as a 'Second Defense' a general denial. He then sought and obtained this intermediate appeal to review the propriety of the foregoing actions by the trial court.

The primary question presented is whether under the Utah Rules of Civil Procedure a motion to dismiss is the correct form for objecting to venue improperly laid. The defendant points out that under the Federal Rules the 'defense of improper venue may be interposed by motion to dismiss.' ¹ However, the Utah and Federal rules and practice are not always identical. It is true that Utah Rule 41(b) provides:

'Unless the court in its order for dismissal otherwise specifies * * * any dismissal * * *, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.'

But the implication here that venue is properly tested by a motion to dismiss is apparently an inadvertence, the Utah rule having adopted too literally the wording of the Federal rule after which it was patterned. The difference in practice is made clear by comparison of the official forms appended to the rules. Federal Form 19 includes improper venue as one of the grounds for a motion to dismiss, but Utah Form 20 omits improper venue as a ground for the motion to dismiss. The Utah Committee's Note says:

'Federal Form 19 modified. No reference is made above to a motion to dismiss for lack of venue * * *. Our statute [now 78-13-8] * * * authorizes change of place of trial where there is improper venue.'

The Utah statute on venue, just referred to, states:

'If the county in which the action is commenced is not the proper county for the trial thereof, the action may nevertheless be tried therein, unless the defendant at the time he answers or otherwise appears files a motion, in writing, that the trial be had in the proper county.'

The statute thus clearly provides that objection to venue is made by motion for change of place of trial rather than by motion to dismissal. Moreover, dismissal therein of dismissal. Moreover, dismissal would entail the extra expense and trouble of recommencing suit in another county, contrary to the avowed objective of our new rules of simplifying procedures to permit expeditious and inexpensive trial of causes. A statement from Sanipoli v. Pleasant Valley Coal Co., ² written during a period when the change of venue statute had been repealed, is pertinent:

'If the court of the county where the action was commenced had jurisdiction of the subject-matter, and the defendant was there subject to the process of that court, but by reason of some constitutional or statutory provision he had the right to insist that the action be 'tried' in another county, we see no authority of the court to dismiss the action, as was here done by it.'

Though we unanimously affirm the trial court's orders denying defendant's motion to dismiss, inasmuch as the cause is to be remanded for further proceedings we ought to inquire whether defendant is now foreclosed from further objecting to venue. ³

Plaintiff does not dispute here that venue was improperly laid or that defendant would have had a right to change if he had moved properly, ⁴ but urges that by making the motion to dismiss instead of the proper motion, for change of venue, he is now precluded from making the latter motion. This would be true (1) if the order vacating judgment validly imposed the condition that the defendant must waive his right to object to improper venue and answer, or (2) if the venue statute, requiring that the motion for change of place of trial be made at the 'time he answers or otherwise appears,' means that the making of any other motion at defendant's first appearance precludes him from making a motion for change of venue thereafter.

As to (1) above, the wording of the court's order might be construed as imposing the condition that the judgment be vacated only upon answer by the defendant, waiving any further right to object to venue. It is unquestioned that the entry of the default judgment was one day premature. And though a prematurely entered default judgment is not void, ⁵ the failure to allow defendant his full time to appear and defend violates an important procedural guarantee and constitutes error which the defendant could have corrected as a matter of right. The court, therefore, could not properly impose a condition as a prerequisite to setting the judgment aside, and the effect of the court's order was to leave the defendant as though the erroneous default judgment had never been entered. ⁸

As to (2) above, the statute does require the defendant to file a motion for change of venue at his first appearance. ⁶ Uusually, making any other motion or appearance prior thereto would foreclose defendant from thereafter objecting to venue. However, where certain portions of our rules gave some semblance of propriety to the form of defendant's motion, ⁷ and under the other circumstances here present, we do not believe that he should be so foreclosed. The fact that the defendant's motion at his first appearance was not in proper form is less important than that at such appearance he clearly objected to the venue and continually thereafter persisted in attempting to have it rectified. After the first motion was...