O'Hanion v. Great Northern Ry. Co.

• Decision Date: 05 April 1926
• Docket Number: 5889.
• Parties: O'HANION v. GREAT NORTHERN RY. CO.
• Court: Montana Supreme Court

245 P. 518

76 Mont. 128

O'HANION v. GREAT NORTHERN RY. CO.

No. 5889.

Supreme Court of Montana

April 5, 1926

Appeal from District Court, Lewis and Clark County; A. J. Horsky Judge.

Action by Sarkis O'Hanion against the Great Northern Railway Company. From an order granting defendant's motion for change of venue, plaintiff appeals. Affirmed.

Plaintiff appeals from an order of the district court of Lewis and Clark county granting defendant's motion for a change of venue of this action from Lewis and Clark to Flathead county.

The complaint was filed with the clerk of the district court of Lewis and Clark county on September 5, 1925. The action is grounded upon a personal injury alleged to have been received by plaintiff by reason of defendant's negligence, while plaintiff "was in the employ of defendant as a section laborer at Gravel Pit on defendant's main line of railroad between Seattle, Wash., and Minneapolis, Minn within the state or district of Montana." Within time and after proper service upon counsel for plaintiff, the defendant filed a demurrer to the complaint, and at the same time a demand for a change of place of trial and an affidavit in support thereof. The defendant demanded that the trial of the action be had in the county of Flathead "for the reason that Lewis and Clark county is not the proper county for the trial of said cause, it appearing from the complaint filed therein that said action is founded on certain alleged acts of negligence occurring in Flathead county, damages being demanded, * * * and none of the damages claimed arose out of any act or omission occurring elsewhere than in said Flathead county, Montana." Reference to the affidavit will be made later.

Thereafter and on October 5, 1925, the defendant served upon counsel for plaintiff, and filed with the clerk of the court, its notice of motion and written motion for a change of venue. The notice apprised plaintiff's counsel that defendant, upon October 20, 1925, at 1:30 o'clock p. m. of that day, at the courthouse in Helena, Montana, etc., would move the court for an order changing the place of trial of the action from Lewis and Clark county to Flathead county, "on the ground that Lewis and Clark county is not the proper county for the trial of said cause, in accordance with the written motion, copy of which is hereto attached and herewith served upon you."

Thereafter and on the 20th day of October, 1925, the motion came on for hearing. During the argument counsel for defendant asked leave to, and over the objection of plaintiff was permitted to, file another affidavit in support of its demand for a change of place of trial. The sufficiency of the original affidavit was attacked because therein the defendant did not disclose in what county the alleged cause of action arose. This affidavit was made by Mr. Clift, one of the attorneys for the defendant, who, after setting forth why it was made by him, alleged the fact of the service of the summons and complaint upon the defendant, and that the facts surrounding the accident and the injuries alleged to have been sustained by the plaintiff as a result thereof had been fully related to affiant by the agents, servants, and employees of the defendant having personal knowledge of the occurrence "and affiant verily believes that said defendant through its agents, servants, and employees, has fully and fairly stated the facts of the case to the affiant, who believes and who has so informed defendant, its agents servants, and representatives, that it has a good and substantial defense on the merits of this action." The main purpose of the affidavit filed upon October 20th was covered by the assertion "that the accident on which this suit is founded occurred at the Gravel Pit of this defendant situated near the town or station of Belton, Flathead county, Montana, on the 29th day of June, 1925, and that no accident occurred in which plaintiff sustained any injuries while in the service of the Great Northern Railway Company in Lewis and Clark county, Montana." After having taken the matter under advisement, the court made the order.

C. A. Spaulding, of Helena, and Maury & Brown, of Butte, for appellant.

I. Parker Veazey, Jr., W. L. Clift, and R. H. Glover, all of Great Falls, for respondent.

CALLAWAY, C.J. (after stating the facts as above).

The plaintiff, within the limitations of the statutes, may select any county he chooses for the trial of his action, and to this choice the defendant must conform unless he seasonably moves for a change of place of trial. The word "moves," as here employed, comprehends the things necessary to be done by the litigant to obtain an order of court directing the change.

A defendant may waive his right to the privilege of the change by omitting to demand the right or by failing to observe the statutory requirements. Sections 9097, 9098, R. C. 1921; State ex rel. Williams v. District Court, 185 P. 458, 56 Mont. 478; Danielson v. Danielson, 203 P. 506, 62 Mont. 83; State ex rel. Davis v. District Court, 231 P. 395, 72 Mont. 56.

As this action sounds in tort, it is triable properly in the county where the tort was committed. Dryer v. Director General of Railroads, 213 P. 210, 66 Mont. 298; State ex rel. Interstate Lumber Co. v. District Court, 172 P. 1030, 54 Mont. 602. Lewis and Clark is not that county, but nevertheless the action may be tried there unless the defendant has availed itself of its statutory right to have the venue changed to the proper county.

The plaintiff contends that the defendant has waived its right to the change by failing to pursue the statutory requirements. His argument is based upon two grounds: (1) The defendant did not file with its written demand a "motion" for the change; (2) the original affidavit was insufficient and the court erred in permitting another to be filed. As we shall demonstrate presently, neither of these grounds is tenable. The first not only is in the very teeth of the Davis Case, supra, but has its insecure basis upon a misconception of the meaning of the word "motion" as variously used in certain of our opinions to which we shall call attention presently. Preliminary to that, it may be of advantage to examine the applicable statutes again.

"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." Section 9097, R. C. 1921. This section is not operative by itself; it is operative only in connection with the next section, 9098, which provides that the court or judge must, on motion, change the place of trial when the county designated in the complaint is not the proper county.

While section 9097 furnishes the basis for the motion, it does not supply the place of the motion. The filing of the affidavit and demand do not operate ipso facto to change the place of trial. The court can act only upon motion. State ex rel. Gnose v. District Court, 75 P. 1109, 30 Mont. 188. It "cannot change the place of trial sua sponte." Danielson Case, supra; Davis Case, supra. The litigant seeking a change of place of trial under these sections must, first, file an affidavit of merits and a demand in writing; second, apply to the court for an order changing the place of trial. These movements, mentioned as first and second above, are distinct and separate; also indispensable and imperative, in the absence of an agreement of the parties. Section 9102, R. C. 1921.

California and Nevada have statutory provisions similar to our own, and such seems to have been the consistent holding of the appellate courts of those states. In fact, we took section 9097 and that portion of 9098 referred to above from California.

Now, what is a motion? It must be admitted that the word probably is used oftener in its general than in its technical sense. One says he intends to make a motion for a continuance, or for a change of venue, or for a new trial. He means that he intends to serve and file all the requisite papers and to go through the entire process necessary to procure the order he seeks. Technically a "motion" is an application for an order; so says the statute. Section 9772, R. C. 1921. "A motion is properly an application for a rule or order, made viva voce to a court or judge," said Mr. Justice Temple in People v. Ah Sam, 41 Cal. 650. "The grounds of the motion are often required to be stated in writing and filed. In practice the form of the application itself is often reduced to writing and filed. But making out and filing the application itself is not to make the motion. If nothing more were done, it would not be error in the court to entirely ignore the proceeding. The attention of the court must be called to it. The court must be moved to grant the order." This language was quoted with approval by this court in Wallace v. Lewis, 24 P. 22, 9 Mont. 399, and has been followed consistently by the Supreme Court of California. See 18 Cal. Jur. 649, 650. Wallace v. Lewis has been followed in Peters v. Vawter, 25 P. 438, 10 Mont. 201; and State ex rel. Davis v. District Court, supra.

Notice of the motion is required. The written motion, if one be filed, is not notice of the time and place when and where the movant will make application for the order. If notice were not required, the movant, immediately after filing and serving his demand, affidavit of merits, and, let us say written "motion," might immediately apply to the court for the order sought and obtain the same in the absence of his adversary; the adversary having no opportunity to be heard. The matter, however, is not in doubt. In ...