Danielson v. Danielson

• Decision Date: 24 December 1921
• Docket Number: 4568.
• Citation: 203 P. 506,62 Mont. 83
• Parties: DANIELSON v. DANIELSON.
• Court: Montana Supreme Court

203 P. 506

62 Mont. 83

DANIELSON v. DANIELSON.

No. 4568.

Supreme Court of Montana

December 24, 1921

Rehearing Denied Jan. 16, 1922.

Appeal from District Court, Phillips County; H. C. Hall, Judge.

Action by Anna Danielson against David Danielson. From a judgment for plaintiff and an order denying a motion to vacate the judgment, defendant appeals. Affirmed.

T. F McCue, of Great Falls, for appellant.

Fred C Gabriel, of Malta, for respondent.

HOLLOWAY J.

This action was instituted in the district court of Phillips county. The original complaint was filed August 5, 1919, and set forth a cause of action for divorce upon the ground of willful neglect. On September 18, defendant filed his answer and a demand in writing that the venue be changed to Teton county. On September 26 plaintiff served an amended complaint, and on the day following filed it. On September 27 defendant gave notice that on October 10 he would move the court for a change of venue upon the grounds set forth in certain affidavits then filed. The court minutes for October 11 recite that the motion was denied, and on November 6 the default of the defendant was entered for failure to answer the amended complaint. On the same day evidence was heard, and on November 7 a decree of divorce was rendered and entered. On November 19 a motion was made to vacate the judgment and set aside the default, but this motion was overruled, and defendant appealed from the judgment and from the order refusing to vacate it.

Error is predicated upon the refusal of the court to change the venue. Section 6505, Revised Codes, reads as follows:

"If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears and answers or demurs, files an affidavit of merits, and demands, in writing, that the trial be had in the proper county."

The only ground for change of venue suggested by defendant is that he is a resident of Teton county, and was at the time this action was commenced.

Section 6505 merely confers jurisdiction to try the cause if a change of venue is not demanded. Section 6506 enumerates the causes for which a change of venue may be had, the first of which is, "when the county designated in the complaint is not the proper county." These sections are companion statutes, and must be construed together. If the complaint does not disclose the place of defendant's residence, the burden is upon the defendant himself to make known the fact that he is a resident of a county other than the one in which the action was commenced, if he would secure a change of venue upon the first ground mentioned in section 6506. Greenleaf v. Jacks, 133 Cal. 506, 65 P. 1039. But disclosing his place of residence alone is not sufficient. He must also make a motion for the change. Under the express terms of section 6506 the court can act only "upon motion," and cannot change the place of trial sua sponte. State ex rel. Gnose v. District Court, 30 Mont. 188, 75 P. 1109.

When section 6505 is read in connection with section 6506 it becomes apparent that the evidence of defendant's residence and the motion for change of venue must be presented at the time of first appearance when the answer or demurrer is filed (State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 P. 1030; Cook v. Pendergast, 61 Cal. 72; Wadleigh v. Phelps, 147 Cal. 541, 82 P. 200; Union Lumber Co. v. Metropolis Constr. Co., 13 Cal.App. 584, 110 P. 329), and, if not presented at that time, the right to a change of venue is waived (State ex rel. Williams v. District Court, 56 Mont. 478, 185 P. 458).

It may be conceded, for the purposes of this case, that the fact that defendant is not a resident of the county in which the action is commenced may be shown by the complaint, the answer, the affidavit of merits, or a separate affidavit filed for that particular purpose. In this instance neither the complaint nor the answer refers to the defendant's place of residence. There was not any affidavit filed at the time defendant first appeared, and there was therefore nothing before the court at that time to indicate that the action had not been commenced in the proper county. The demand for a change of venue is not any evidence of the place of defendant's residence. It need not be verified, and in the usual course of practice is signed by the attorney.

The notice of motion for a change of venue was not filed until nine days after defendant answered, and so far as disclosed by the record the motion itself was not made until October 10, nearly a month after defendant's first appearance. The demand referred to in section 6505 does not supply the place of the motion required by section 6506. Bohn v Bohn, 164 Cal. 532, 129 P. 981; Holt v. Warf (Idaho) 194 P. 475. The right to a change of venue is purely statutory, and can be asserted successfully only by one who brings himself within the statute. Powell v. Sutro, 80 Cal. 559, 22 P....