Fraser v. Clark

• Decision Date: 08 July 1954
• Docket Number: No. 9435,9435
• Citation: 128 Mont. 160,273 P.2d 105
• Parties: FRASER et al. v. CLARK et al.
• Court: Montana Supreme Court

Page 105

273 P.2d 105

128 Mont. 160

FRASER et al. v. CLARK et al.

No. 9435.

Supreme Court of Montana.

July 8, 1954.

Wood, Cooke & Moulton, Billings, for appellants.

G. J. Jeffries, Roundup, and Howard C. Gee, Lewistown, for respondents.

ADAIR, Chief Justice.

This is an appeal from an order granting a change of venue.

On February 18, 1954, the plaintiffs, R. B. Fraser and Rosabelle Fraser, commenced this action in the district court of Yellowstone County, Montana, against the defendants, E. C. Clark and Evan Owens. At the time of filing their complaint plaintiffs caused summons and a writ of attachment to issue in the action.

The complaint is studiously vague, indefinite, ambiguous and uncertain. It contains little that in any wise or manner indicates to the court, trial or appellate, the proper county for the trial of the action.

The complaint, omitting its formal parts, reads:

'Complaint

'Plaintiffs complain of defendants and for cause of action allege:

'I. That heretofore plaintiffs and defendants made and entered into a certain contract in writing bearing date of December 30th, 1952, wherein and whereby the said defendants promised and agreed to pay to the plaintiffs, when certain title obligations were met by the plaintiffs, the principal amount of $28,500.00, and, in addition thereto promised and agreed to pay to the said plaintiffs, and on the 15th day of December, 1953, interest on the principal amount of $106,500.00 at the rate of 5% per annum from the 1st day of March, 1953;

'II. That the said plaintiffs have heretofore fully met and discharged their said title obligations, but that, nevertheless, the said defendants have failed and neglected to pay to the said plaintiffs the said principal amount of $28,500.00, or any part thereof, and, further, have failed and neglected to pay, on the said 15th day of December 1953, or at all, the said interest on the said principal amount of $106,500.00, and that there is now due and owing from the said defendants to the said plaintiffs herein, and wholly unpaid, the said principal amount of $28,500.00, with interest thereon, and, in addition thereto, interest as aforesaid on the said principal amount of $106,500.00, and that payment of all thereof has been demanded.

'Wherefore, Plaintiffs pray judgment against the said defendants as follows, to-wit:

'For the principal amount of $28,500.00 with interest thereon, together with interest on the principal amount of $106,500.00 from the 1st day of March, 1953, and for plaintiffs' cost of suit herein incurred.'

The allegations of the above complaint render little assistance in determining the particular county wherein the action should be tried.

The complaint states that the parties entered into a written contract but no copy of such instrument is set forth or attached nor does the complaint disclose where such contract was made nor does it state the county or place in which such contract was or is to be performed by either plaintiffs or defendants. R.C.M.1947, § 93-2904.

The complaint avers that in the contract defendants agreed to pay plaintiffs $28,500 and interest 'when certain title obligations were met by the plaintiffs' but it fails to state what these 'title obligations' were or where they were to be met or performed or whether the alleged 'title obligations' involve the title to real property or the title to personal property, or whether the subject of the action and contract concerns an estate, right, title or interest in real property, in personal property or in either or both. Constitution of Montana, Art. VIII, § 11; R.C.M.1947, §§ 93-320, 93-6203.

The complaint is completely silent as to the county in which the subject of the action or the property involved is situate. R.C.M.1947, § 93-2901, subd. 1.

Not only does the complaint fail to disclose the nature and situs of the property involved but it is also silent as to the nature of the contract itself so that it is utterly impossible to ascertain from the complaint whether the contract sued upon is a contract for: 1) A commission claimed by a realtor on the sale of real estate; 2) a contract of title insurance on real property; 3) a contract for deed; 4) a contract for the sale and purchase of real property; 5) a mortgage contract on real property; 6) a conditional sale contract; 7) a promissory note, or 8) some other contract concerning 'title obligations,' rights, interests, estates, sales or transfers of property, real or personal.

The complaint also fails to disclose anything concerning the residence or whereabouts of any of the parties litigant. It does not aver that the county of defendants' residence is unknown to plaintiffs nor does it state that either defendant may be about to depart from the state. R.C.M.1947, § 93-2904.

On February 20, 1954, the defendants were personally served in Fergus County, Montana, with the summons so issued in the action, said county being the county in which the defendants then, and at the time of the commencement of the action, resided.

Also on February 20, 1954, the sheriff of Fergus County, assuming to act pursuant to the authority conferred by the writ of attachment so issued in the action, attached and levied upon personal property of the defendants of the approximate value of $80,000, all located in Fergus County and consisting of ranch machinery and equipment, motor trucks, automobiles, saddle horses, and 390 head of thoroughbred Hereford cattle.

On March 3, 1954, the defendants made their general appearance in the action by interposing a general demurrer to plaintiffs' complaint, at which time defendants also filed affidavit of merits,--a demand for a change of place of trial of the action to Fergus County, Montana,--a written motion and a notice of motion for change of place of trial and an affidavit by the defendant E. C. Clark in support of such demand and motion all in compliance with the requirements of R.C.M.1947, § 93-2905.

Defendants' motion for change of place of trial to Fergus County was made upon the grounds, inter alia:

'That the defendants do not, nor do either of them reside in the County of Yellowstone, Montana, each thereof being residents of the County of Fergus, Montana, and that they were such residents at all of the times herein mentioned; that * * * process herein was served upon them in said County of Fergus;

'That said action involves a purchase and sale contract of real property, all of which is situate in the said County of Fergus; that said contract of purchase and sale * * * upon which this action is based, was signed in the County of Fergus; that the testimony which will be adduced by and on behalf of the defendants herein will involve a large number of public records in said county of Fergus, also testimony of the general location, topography and characteristics of the lands involved; and that a large number of resident witnesses in said county conversant with the facts, will be necessary to adequately and properly submit the defense of the defendants herein; that if a change of place of trial be not granted, great hardship, inconvenience and expense will necessarily be incurred; and that the defendants will be unable to submit their complete defense herein, in that the public records in said county can not be removed therefrom and would not be available in a trial of this proceeding in Yellowstone County.'

The affidavit of the defendant, E. C. Clark, in support of defendants' motion for change of place of trial, inter alia, recites:

'That the defendants herein are now and at all times during their residence in the State of Montana, have been residents of Fergus County, Montana, and that * * * process herein was served upon them in said County.

'That prior to and on the 30th day of December 1952, after extended negotiations in Fergus County, Montana, the parties hereto entered into a certain Contract for the purchase of land and premises situate in Fergus County, Montana, consisting of two fenced and enclosed ranches, consisting of deeded and leased lands and located about fifteen miles apart, commonly known and designated as the Home Ranch and North Ranch; * * *.

'That at said time as in said contract recited Defendants duly delivered Plaintiffs, 'The $15,000 earnest money payment held in escrow to be turned to R. B. Fraser as soon as he shows good title to the land. The rest of the down payment of $28,500 to be paid to Mr. Fraser after purchaser's attorney has had opportunity to check the legal papers.'

'That possession of said premises so contracted to be sold was to be delivered Defendants, the purchasers, the 1st day of April, 1953; that said Plaintiffs failed and refused so to do * * *.

'That * * * on the 20th day of February, 1953, an Abstract for part of the lands embraced in and constituting the Home Ranch, commonly known and described as the Moulton Ranch, was received by Defendants' Counsel in Lewistown, Montana, that while ordered and compiled, Abstracts of Title for a large part of the lands therein, due to failure to pay the cost thereof, were never delivered Defendants or their Attorney for examination, and that no Abstracts for a substantial part of the lands contracted to be sold the Defendants representing said Home or Moulton Ranch have ever been submitted Defendants or their Attorney for examination, that no Abstracts of Title for any of the lands embraced in and representing the North Ranch have ever been submitted Defendants or their Attorney for examination. * * *

'That a Policy of Title Insurance, allegedly for said lands, was submitted Defendants' Attorney in Lewistown, Montana, on January 12, 1954, that Defendants were thereafter so advised by letter, * * * that by letter from Defendants' Attorney dated February 15, 1954, * * *. Defendants were advised, 'Abstracts of Title to the main Moulton Ranch have been delivered and examined and reported on, a quiet title action as to the remainder of the land is, in a...