Dworsky v. Herbst

• Decision Date: 06 February 1959
• Docket Number: No. 37717,37717
• Citation: 95 N.W.2d 19,254 Minn. 295
• Parties: Peter A. DWORSKY, Respondent, v. Ervin HERBST and Ernest Herbst, individually and doing business as Herbst Construction Company, Relators.
• Court: Minnesota Supreme Court

Page 19

95 N.W.2d 19

254 Minn. 295

Peter A. DWORSKY, Respondent, v. Ervin HERBST and Ernest Herbst, individually and doing business as Herbst Construction Company, Relators.

No. 37717.

Supreme Court of Minnesota.

Feb. 6, 1959.

Syllabus by the Court.

Defendants named in a summons and complaint who are not yet served with summons may join with defendants who are served in demanding a change of venue under M.S.A. § 542.10. When proof of such demand by a majority of the named defendants is filed as required by statute, the venue is ipso facto changed to the county covered by the demand.

Burns & Burns, St. Cloud, Mahoney & Mahoney, Wayne G. Popham, Minneapolis, for relators.

Sachs, Karlins, Grossman & Karlins, Minneapolis, for respondent.

KNUTSON, Justice.

This is a petition for a peremptory writ of mandamus to compel the court below to grant a change of venue.

This action was brought in Hennepin County by plaintiff to recover unpaid rent alleged to be due from defendants under a written lease covering certain premises in Anoka County. The summons and complaint were served on Ervin Herbst on September 5, 1957. On September 17, the defendants made a demand under M.S.A. § 542.10 for a change of venue to Benton County. The demand was accompanied by an affidavit of defendants' attorney in which he stated:

'* * * That defendant Ervin Herbst was on September 5, 1957, at the time of the service of the Summons and Complaint, and still is a resident of the County of Ramsey, State of Minnesota. That defendant Ernest Herbst was on September 5, 1957, and still is an actual resident of the County of Benton, State of Minnesota, and that no service has been made on said defendant.'

On September 21, 1957, Ervin Herbst interposed a separate answer and counterclaim. On September 24, plaintiff filed an objection to the change of venue on the ground--

'* * * that said demand requires a change to a county in which none of the present parties in this action reside. Said Ernest Herbst, who was named as a defendant in the complaint, resides in Benton County, is not a party to this action as he has not been served with process nor has an answer been made in his behalf, nor has he made any other appearance in this action.'

The objections were accompanied by an affidavit of plaintiff's attorney in which he also stated:

'* * * That no service was ever made on the defendant, Ernest Herbst. * * * That the defendant, Ernest Herbst, who was not served with process, had made no answer to plaintiff's complaint and has not appeared in this action and is not now a party to this action.'

On October 8, 1957, defendant Ernest Herbst, apparently believing that there was some question as to whether he had joined in the original demand for a change of venue, filed a separate demand in which he expressly joined with Ervin Herbst and Herbst Construction Company in demanding that the venue be changed to Benton County. In the affidavit of his attorney accompanying this demand, he again stated:

'* * * That the defendant Ernest Herbst was on September 5, 1957, at the time of service of summons and complaint on Ervin Herbst, and still is a resident of the County of Benton, State of Minnesota.'

At that time Ernest Herbst had not yet been served with summons.

The clerk of court refused to transfer the case to Benton County. It was placed on the calendar for trial in Hennepin County. On October 22, Ervin Herbst moved the court to strike the case from the calendar and to change the place of trial to Benton County. This motion was denied by the trial court on December 3. Some other maneuvering occurred subsequent thereto which is of no importance in determining the issue now before us.

The question presented here is: What are the rights of a defendant named in a summons and complaint but not yet served with summons to join with a defendant who has been served in a demand for a change of venue under § 542.10?

The applicable statutes are § 542.01, which reads:

'Except as provided in section 542.02, every civil action shall be tried in the county in which it was begun, unless the place of trial be changed as hereinafter prescribed; and when so changed all subsequent papers in the action shall be entitled and filed in the county to which such transfer has been made,'

§ 542.09, which as far as material reads:

'All actions not enumerated in sections 542.02 to 542.08 and section 542.095 ¹ shall be tried in a county in which one or more of the defendants reside when the action is begun * * *,'

and § 542.10, which reads:

'If the county designated in the complaint is not the proper county, the action may notwithstanding be tried therein unless, within 20 days after the summons is served, the defendant demands in writing that it be tried in the proper county. This demand shall be accompanied by the affidavit of the defendant, or his agent or attorney, setting forth the county of his residence at the time of the commencement of the action. This demand and affidavit, with proof of service thereof upon the plaintiff's attorney, shall be filed with the clerk in the county where the action was begun within 30 days from the date of its service and thereupon the place of trial shall be changed to the county where the defendant resides without any other proceedings. If there are several defendants residing in different counties, the trial shall be had in the county upon which a majority of them unite in demanding or, if the numbers be equal, in that whose county-seat is nearest. When the place of trial is changed all other proceedings shall be had in the county to which the change is made, unless otherwise provided by consent of parties filed with the clerk or by order of the court and the papers shall be transferred and filed accordingly. When a demand for a change of the place of trial is made as herein provided the action shall not for any of the reasons specified in section 542.11 be retained for trial in the county where begun, but can be tried therein only upon removal thereto from the proper county in the cases provided by law.'

The trial court, as well as plaintiff here, relied upon Cory Corporation v. Fitzgerald, 335 Ill.App. 579, 82 N.E.2d 485. The procedural aspects of the statute involved in that case are entirely different from ours. The Illinois statute under consideration there (Ill.Rev.Stat.1957, c. 146, § 9) required an application to the court for a change of venue. The application in the Cory case was made on the ground that the trial court was prejudiced. The statute provided, among other things:

'When there are two or more plaintiffs or defendants, a change of venue shall not be granted unless the application is made by or with the consent of at least three-fourths of the parties, plaintiff or defendant, as the case may be.'

In holding that the defendants who had not been served with a summons should not be counted in determining whether there were three-fourths joining in the application, the court said (335 Ill.App. 579, 585, 82 N.E.2d 485, 487):

'It is our considered opinion that in determining what constitutes three-fourths of the defendants for the purpose of satisfying the statutory requirement that application for change of venue must be made by or with the consent of three-fourths of the defendants, only those defendants need be considered who have been served with summons, or, not having been served, made an appearance. * * * We therefore hold that a person who had been named as a defendant but who had never been served with summons nor entered an appearance was not a defendant whose consent was necessary under the statute.'

The Illinois court did not decide what is meant by the words 'or, not having been served, made an appearance.' The general rule is that an appearance for any other purpose than to question the jurisdiction of the court is a general appearance. ² We have held that a demand for a change of venue is a general appearance. ³

Under § 542.10 no application to the trial court is required. When a proper demand and affidavit, sufficient under the statute, are field, the venue is ipso facto changed to the county covered by the demand.

In State ex rel. Minneapolis Threshing-Machine Co. v. District Court, 77 Minn. 302, 306, 79 N.W. 960, 961, we said:

'The meaning of this statute is plain. If a defendant complies with its provisions, he has an absolute right to have the venue changed to the county of his alleged residence. The action cannot be retained in the county in which the venue was originally laid, for the purpose of traversing the allegations of the affidavit as to defendant's residence, or for the hearing of a motion to retain the case for the convenience of witnesses. If the plaintiff wishes to challenge the truth of the affidavit as to the defendant's residence, his remedy is to move the court in the county to which the venue is changed by the demand and affidavit to remand the case on the ground that the defendant is in fact a resident of the county in which the action was originally brought. If a defendant complies with this statute, and makes the demand and affidavit, and files them, with proof of service thereof, in the office of clerk of the court, the place of trial is ipso facto changed, and the defendant has an absolute right to have the papers and files transferred to the district court of the proper county.' ⁴

The Illinois statute does not have the absolute limitation on the time within which a defendant must act such as we have in ours. Under § 542.10 a defendant must decide within 20 days after service of summons upon him what action he wishes to take. If he permits that time to expire, it is then too late for him to act. If he must choose a county and then take the chance that plaintiff will serve on other defendants who may then join in his demand, he may lose the opportunity to have the venue changed to the county in which he lives if plaintiff decides not to proceed against such other ...