Hardenburgh v. Hardenburgh

• Court: Montana Supreme Court
• Writing for the Court: ADAIR, Justice. MORRIS, Justice.
• Citation: Hardenburgh v. Hardenburgh, 115 Mont. 469, 146 P.2d 151 (Mont. 1944)
• Decision Date: 16 February 1944
• Docket Number: 8457.
• Parties: HARDENBURGH et al. v. HARDENBURGH.

146 P.2d 151

115 Mont. 469

HARDENBURGH et al. v. HARDENBURGH.

No. 8457.

Supreme Court of Montana

February 16, 1944

Appeal from District Court, Seventh Judicial District, Richland County; Frank P. Leiper, Judge.

Action by M. R. Hardenburgh and Christina Hardenburgh against Floyd J. Hardenburgh for breach of a written contract for sale. From an order denying defendant's motion for change of place of trial, defendant appeals.

Reversed and remanded, with directions.

ERICKSON J., and JOHNSON, C.J., dissenting.

Ralph L. Arnold, of Missoula, for appellant.

Sanders & Anderson, of Sidney, for respondents.

ADAIR Justice.

Appeal by defendant from an order denying his motion for change of place of trial. The action, which was brought in Richland county, is to recover for breach of a written contract for sale. Defendant's motion was for a transfer of the action to Missoula county upon the grounds: (1) that defendant resided in that county at the time of the commencement of the action and (2) that Missoula county is the county in which the contract was to be performed.

It appears from the complaint, the copy of the contract attached thereto and the affidavit of defendant filed in support of his motion: That plaintiffs and defendant operated a commercial outdoor advertising business in the city of Missoula and surrounding territory; that on June 23, 1932 plaintiffs entered into a contract with defendant to sell him their interest in such business; that on the same date the parties also entered into an escrow agreement and plaintiffs executed a bill of sale of their interest, which papers were then placed in escrow with the First National Bank of Missoula, Montana; that more than eight years passed and on April 19, 1941, at Missoula, the parties entered into a new written contract (the one sued upon) wherein they "mutually agreed to replace said agreement of June 23 1932 and the escrow instructions of the same date, by the terms and stipulations" contained in the new contract that in the new contract the plaintiffs promised to deliver to defendant the bill of sale "now held in escrow in the First National Bank of Missoula, Montana, conveying to the party of the first part [defendant] all their right, title and interest in and to the commercial advertising business heretofore mentioned"; that plaintiffs promised in the contract to "instruct the First National Bank of the City of Missoula, Montana, to deliver to the party of the first part [defendant] the Bill of Sale heretofore described, which said Bank now holds in escrow, and also to deliver to the said party of the first part [defendant] the agreement and escrow instructions dated June 23, 1932;" that the defendant promised in the contract to pay to plaintiffs or their order commencing with the 10th day of May, 1941, $100 per month as long as they or either of them shall live; that in the new contract the parties agreed that such contract "shall be in lieu of and shall replace the agreement dated June 23, 1932, and the escrow instructions of the same date and said agreement and escrow instructions are hereby declared by the parties to be null and void and of no further force or effect;" that the defendant promised to pay a reasonable attorney's fee in case of suit against him on the contract; that in event of the death of defendant before either of plaintiffs the contract was to become null and void and not to be the basis of any claim against the defendant's estate; that at the time of entering into the new contract all the contracting parties were then residents of the city and county of Missoula; that on May 24, 1943, when suit was commenced, and on the following day, when summons was served upon him, the defendant then was a bona fide resident of Missoula county, that defendant was served with process in Missoula county and that he has resided therein for 25 years last past. Plaintiffs demand judgment in the amount of certain interest installments alleged to be delinquent together with interest, attorneys' fees and costs. The complaint alleges that "at all times material to this cause of action" plaintiffs have been and now are both residing at Sidney, Richland county, Montana, without alleging when plaintiffs removed from Missoula county or for what period of time they claimed to have resided in Richland county. In his affidavit the defendant, among other things, deposes: "That said action is founded upon a written contract, a copy of which is attached to the complaint, which written contract was executed in and to be performed in Missoula County, Montana and that all the parties thereto were resident in Missoula County, Montana at the time of the execution of said written contract." The one and only statement in the above paragraph which plaintiffs controvert is that the contract was to be performed in Missoula county, it being their contention that it was to be performed in Richland county.

A question of venue is presented, namely: What is the proper county for the trial of this action? The answer to the above question must be found in the terms of the statutes of this state regulating venue in civil actions. The statutes which regulate the venue of such actions are sections 9093 to 9098, inclusive, Revised Codes.

The general rule governing venue in civil actions is that the action shall be tried in the county in which the defendant resides at the commencement of the action. 67 C.J. title Venue, sec. 27, p. 24; sec. 30, pp. 27, 28.

In olden times venue indicated the county from which the jury was to come. This is the basis for the general rule. "Anciently a jury of one county could not try any matter arising in another county. A foreign county was almost as formidable a thing as a foreign country." 27 R.C.L. sec. 2, p. 778. In present day legal phraseology "venue" means the proper county for the trial of a cause; that is, the county or counties fixed by statute for the trial. "Venue" is not "jurisdiction" for jurisdiction may not be conferred by consent or waiver while venue may be altered either by consent or by waiver. Stanton Trust & Savings Bank v. Johnson, 104 Mont. 235, 65 P.2d 1188.

The statutes regulating venue provide either (a) for the application of the rule or (b) for the application of an exception to the rule. The Fourth Territorial Legislative Assembly (1867) enacted a Civil Practice Act and in sections 18 and 19, pages 137, 138 thereof, the venue of certain enumerated actions was specifically provided and these constituted exceptions to the general rule. However, in section 20, page 138, of said Act the general rule was adopted and it was provided that in all other cases than those enumerated in sections 18 and 19, supra, the action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action. At all times since 1867 such provision has been a part of the law of this state. Section 20, supra, of the Civil Practice Act of 1867 provided: "In all other cases the action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action; or, if none of the defendants reside in the Territory, or if residing in the Territory, the county in which they so reside be unknown to the plaintiff, the same may be tried in any county which the plaintiff may designate in his complaint; and if any defendant or defendants may be about to depart from the Territory, such action may be tried in any county where either of the parties may reside, or service be had; subject however to the power of the court to change the place of trial, as provided in this act."

In the enactment of the Codified Statutes of 1871, all of section 20, supra, was carried forward in the Codes and in addition thereto new matter was added by way of amendment, which new matter we are indicating in italics, said statute, as amended, reading: "Sec. 25. In all other cases, the action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, or where the plaintiff resides, and the defendants or any of them may be found; or, if none of the defendants reside in the territory, or, if residing in the territory, the county in which they so reside be unknown to the plaintiff, the same may be tried in any county which the plaintiff may designate in his complaint; and if any defendant or defendants may be about to depart from the territory, such action may be tried in any county where either of the parties may reside, or service be had. Actions upon contracts may be tried in the county in which the contract was to be performed; and actions for torts, in the county where the tort was committed; subject, however, to the power of the court to change the place of trial as provided in this act."

Except for changing the word "territory" to the word "state" and changing the word "act," being the last word in the statute, to the word "Code," said section 25 of the Codified Statutes of 1871, page 31, has been re-enacted and carried through the various subsequent revisions of the Codes, and now appears as section 9096, Revised Codes of Montana of 1935.

As the instant action is not of any class enumerated in the exceptions provided in sections 9093, 9094 and 9095, Revised Codes of 1935, its venue must be determined under the provisions of section 9096, Revised Codes, which applies to "all other cases."

Section 9096, excepting only the last sentence thereof, was originally taken from the Code of Civil Procedure of the state of California and the early decisions construing the statute held that the right of the defendant to have the action against him tried in the county of his residence was absolute under the statute and that the court has no discretion in...