Clark v. Baxter

• Decision Date: 08 June 1906
• Citation: 108 N.W. 838,98 Minn. 256
• Parties: CLARK v. BAXTER et al.
• Court: Minnesota Supreme Court

98 Minn. 256

108 N.W. 838

CLARK

v.BAXTER et al.

Supreme Court of Minnesota.

June 8, 1906.

Appeal from Municipal Court of Mankato; W. L. Comstock, Judge.

Action by A. E. Clark against Charles Baxter and J. E. Baxter. Judgment for plaintiff. Defendants appeal. Affirmed.

Syllabus by the Court

Repeals by implication are not favored; but if a subsequent statute, although not repugnant in all its provisions to the former enactment on the same subject, is clearly intended to prescribe the only rule which should govern in the case provided for, it repeals the prior law by implication.

Chapter 143, p. 146, of the laws of 1899, repealed section 5191, Gen. St. 1894, by implication, and required that change of venue in municipal courts of the class to which it applied, including the municipal court of Mankato, be secured in accordance with practice in the district court. Morgan & Meighen and Plymat & Plymat, for appellants.

H. W. Volk, for respondent.

JAGGARD, J.

This action, to recover a money judgment, was commenced in the municipal court of Mankato, Blue Earth county, by plaintiff and respondent against defendants and appellants, both of whom were, at the time of the service of summons, bona fide residents of Murray county. When the summons was served on one defendant, he moved for a change of venue to the district court of the county of his residence before answering, in accordance with practice in the district courts. The municipal court denied the motion because of the convenience of witnesses, as appeared in certain affidavits filed by the plaintiff in answer to that motion. It is conceded that if the statute governing changes of venue in the district court applied, and the affidavits justified the exercise of discretion of the trial court, this ruling was not erroneous. We are of the opinion that, in holding that the affidavits were sufficient, the trial court did not abuse its descretion. When the summons was subsequently served on the other defendant, he first answered in accordance with what was then concluded by his counsel to be the proper practice in municipal courts, and afterwards, upon papers proper in form, made a motion to change the venue to the county of his residence. That motion was denied. The action was thereupon tried in the municipal court of Mankato and judgment rendered against each defendant in a sum justified by the testimony. The defendants took no part in the trial. From that judgment this appeal was taken.

The question of law presented by this appeal is whether the municipal court of Mankato was governed by the practice as to charge of venue prevailing in district courts or by the earlier municipal court practice under section 5191, Gen. St. 1894. Under that section the demand for change of venue must be made after answering and before the time fixed for trial in cases where the place of trial named in the summons is not the county where the defendant resides. That section controls this case and determines it for the appellant unless it was repealed by chapter 143, p. 146, of the General Laws of 1899, entitled ‘An act to prescribe the method of pleading and practice in certain municipal courts.’ That chapter applies to all municipal courts...