Genevieve E. Claseman v. William Feeney
| Decision Date | 14 November 1941 |
| Docket Number | 33,119 |
| Citation | 300 N.W. 818,211 Minn. 266 |
| Parties | Genevieve E. Claseman v. William Feeney |
| Court | Minnesota Supreme Court |
Application to this court by order to show cause upon the relation of William Feeney for a peremptory writ of mandamus to compel the Honorable J. B. Himsl, one of the judges of the seventh judicial district, to change the venue from Todd to Sherburne county of an action for wrongful death brought against relator by Genevieve E. Claseman as administratrix of the estate of George W. Messersmith. Writ discharged and order affirmed.
Maugridge S. Robb, for relator.
Logan O. Scow and Barron & Bradford, for respondent and the Honorable J. B. Himsl.
The opinion of the court was delivered by: Olson
Venue -- defects not affecting jurisdiction -- trial in wrong county.
1. Since our district courts virtually constitute one court of general jurisdiction coextensive with the boundaries of the state, the fact that a civil action is brought or tried in the wrong county is not jurisdictional.
Venue -- regulation.
2. The place of trial is governed by statute. Mason St. 1927, §§ 9206 to 9214.
Venue -- place of trial -- transitory action against nonresident defendant.
3. In a transitory action, defendant being a nonresident, the cause is triable in any county designated by plaintiff. Id. § 9214.
Venue -- place of trial -- transitory action against resident defendant.
4. As to residents, transitory actions are triable in the county where the defendant or one or more of several defendants reside when the action is begun, § 9214; but if the action is begun elsewhere defendant may, upon seasonable demand for change of venue in compliance with § 9215, secure such change as a matter of "right."
Venue -- regulation.
5. The question of venue is a matter for local regulation and state authority.
Venue -- place of trial -- transitory action against nonresident defendant.
6. There being nothing in the language chosen by the legislature in enacting L. 1939, c. 148, to indicate that it was intended to impede or limit a plaintiff's right to designate the place of trial against a nonresident defendant, held that plaintiff may, in conformity with § 9214, lay the venue "in any county" he chooses.
Order to show cause why a peremptory writ of mandamus should not issue directing a transfer of the files and records in this case from the district court of Todd county to Sherburne county for trial.
The action is for wrongful death, under Mason St. 1940 Supp. § 9657. Intestate was killed in an automobile collision in Sherburne county on September 16, 1940. Defendant, a resident of Chicago, Illinois, was the driver of the car claimed to have been the negligent cause of death. Decedent was a resident of Hennepin county at time of death, and the probate court there appointed plaintiff administratrix of his estate. She resides in Todd county.
The only question presented is whether defendant-relator is entitled, as a matter of statutory "right," to a change of venue. He relies upon L. 1939, c. 148, Mason St. 1940 Supp. §§ 9213-1 and 9213-2, which provides:
"That an action against the owner, driver or operator of any motor vehicle arising out of and by reason of the negligent driving, operation, management and control of said motor vehicle may be brought in the county where the action arose or in the county of the residence of the defendant * * * and when so brought the venue of such action shall not be changed without the written consent of the plaintiff." All inconsistent acts "are hereby superseded, modified or amended to conform to" the present act.
1. Since our district courts virtually "constitute one court of general jurisdiction coextensive with the boundaries of the state," the fact that "a civil action is brought or tried in the wrong county is not jurisdictional." 2 Dunnell, Dig. & Supp. § 2758; 6 Id. § 10104, and cases cited under notes.
2. Venue, i.e., place of trial, is governed by statute. Mason St. 1927, §§ 9206 to 9214. Section 9206 provides that "every civil action [except actions relating to land] shall be tried in the county in which it was begun, unless place of trial be changed as hereinafter prescribed." Sections 9215 to 9220 prescribe what must be done to secure a change of venue.
3. This action, being a transitory one and defendant a nonresident is, under § 9214, triable in any county designated by plaintiff. Clements v. Utley, 91 Minn. 352, 98 N.W 188; 6 Dunnell, Dig. § 10109. So, unless that section has been "superseded, modified or amended" by L. 1939 c. 148, the venue was properly laid to Todd county.
4. As to residents, transitory actions are triable in the county where the defendant or one or more of several defendants reside when the action is begun. Mason St. 1927, § 9214; 6 Dunnell, Dig. & Supp. § 10106, and cases under note 97. But if the action is brought elsewhere defendant must make seasonable demand for change of venue in compliance with § 9215.
Relator relies upon State ex rel. Twin City & Southern Bus Co. v District Court, 178 Minn. 72, 73, 74, 225 N.W. 915, and State ex rel. Helmes v. District Court, 206 Minn 357, 287 N.W. 875. Neither case is in point here. In the first cited case (178 Minn. 73, 74) defendant was a --
"foreign corporation authorized to and doing business in this state, having the main and head office in Minneapolis, and having no office, agent, place of business, bus or bus line in the county of Otter Tail;" where the action was brought. * * * "We are now persuaded that the part of the statute relating to foreign corporations as construed in the cases cited offends the equal protection clause of the fourteenth amendment to the federal constitution, in that it unreasonably discriminates against foreign corporations in favor of domestic, according to Power Mfg. Co. v. Saunders, 274 U.S. 490, 47 S.Ct. 678, 71 L.Ed. 1165."
Consequently the court overruled Olson v. D.M. Osborne & Co. 30 Minn. 444, 15 N.W. 876, and Eickhoff v. Fidelity & Cas. Co. 74 Minn. 139, 76 N.W. 1030, which held otherwise.
The Helmes case decided only that L. 1939, c. 148 (206 Minn. 357, 287 N.W. 875) "relates to procedure * * * and applies to actions brought subsequent to the enactment even though the cause of action accrued prior thereto."
5. The question of venue is a matter "for local regulation and state authority." Doll v. C.G.W.R. Co. 159 Minn. 323, 325, 198 N.W. 1006, 1007, where the court said:
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