Helena Adjustment Co. v. Predivich

• Decision Date: 26 November 1934
• Docket Number: 7274.
• Parties: HELENA ADJUSTMENT CO. v. PREDIVICH et al.
• Court: Montana Supreme Court

37 P.2d 651

98 Mont. 162

HELENA ADJUSTMENT CO. v. PREDIVICH et al.

No. 7274.

Supreme Court of Montana

November 26, 1934

Rehearing Denied Jan. 4, 1935.

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

Action by the Helena Adjustment Company against Gabriel Predivich and another. From an order granting defendants' motion for change of venue, plaintiff appeals.

Affirmed.

Rehearing denied; ANGSTMAN, J., dissenting.

Appeal from order changing place of trial held not dismissible where notice of appeal was properly filed with clerk of court issuing order, and bill of exceptions was prepared, signed, and settled within statutory time limit (Rev.Codes 1921, § 9732, as amended by Laws 1925, c. 39; §§ 9390, 9733, 9734).

C. A Spaulding, of Helena, for appellant.

Harry Meyer, of Butte, for respondents.

ANDERSON Justice.

This is an appeal from an order changing place of trial. Plaintiff brought the action in Lewis and Clark county, and at the time of filing the complaint a writ of attachment was issued. On November 10, 1933, defendants filed with the clerk of the court of that county a written exception to the sufficiency of the sureties on the undertaking for attachment. On November 16, 1933, defendants filed a demurrer, motion for change of venue, affidavit of merits, and a demand for the change of place of trial. On November 22d thereafter plaintiff filed a motion to strike defendants' motion affidavit, and demand for change of place of trial, together with notice of hearing the same. The motion was supported by an affidavit reciting that on November 16, 1933, the plaintiff received at the post office in Helena, Mont., in an envelope addressed to plaintiff, copies of the papers filed by the defendants on November 16th; that the postage on this envelope was not fully prepaid; and that the president of the plaintiff company was obliged to, and did, pay the sum of 3 cents due on the letter. The ground of the motion to strike was that the papers in connection with defendants' motion for change of venue were never legally served on plaintiff, and that defendants, by excepting to the sufficiency of the sureties, appeared and thereby waived the right to demand a change of venue.

The trial court denied the motion to strike on December 27, 1933. On January 26, 1934, the motion to strike was resubmitted to the trial court and by it denied. Thereafter, on January 30, 1934, the motion for change of place of trial was heard, and the court made and caused to be entered an order granting the motion. A bill of exceptions was prepared and served on February 7, 1934. No amendments to the bill were proposed, and on February 20, 1934, the bill was settled.

Defendants have moved to dismiss this appeal on various grounds. The first ground of the motion is that no appeal has been taken from the order denying the motion to strike the motion for change of venue from the files, and that no appeal lies from the order denying the motion to strike. It is argued that much of appellant's brief is directed to the alleged error of the court in denying this motion.

The enumeration of the judgments and orders from which an appeal may be perfected to this court is found in section 9732, Rev. Codes 1921, as amended by chapter 39, Laws 1925. True, no mention is there made of an appeal from an order denying a motion to strike. However, by the terms of this section an appeal may be perfected from an order changing a place of trial. The notice of appeal in this case specifies that the appeal is from such order. The mere fact that plaintiff in its brief discusses the ruling of the court on the motion to strike--which is a nonappealable order--is no ground for the dismissal of this appeal when it appears that it is perfected from an appealable order.

It is urged on a number of grounds in this motion that the appeal should be dismissed by reason of the fact that all the papers, after the entry of the order changing the place of trial, were transmitted to the district court of Silver Bow county, and, the notice of appeal and undertaking on appeal being filed in the district court of Lewis and Clark county, that the latter court had lost jurisdiction, and the appeal, therefore, is abortive.

An appeal is taken by filing a notice of appeal with the clerk of the court in which the order appealed from is entered. Section 9733, Rev. Codes 1921. The undertaking on appeal is likewise by the command of the statute to be filed in the same place. Section 9734.

Other grounds of the motion are that no bill of exceptions was signed and settled within the time allowed by law as to the order granting the motion for change of venue, and that it was settled without notice to defendants. The party desiring to have a bill of exceptions settled is required by section 9390, Rev. Codes 1921, within fifteen days after notice of entry of the order from which the appeal is taken, to prepare and serve upon the adverse party his proposed bill of exceptions, unless this time is extended by court order. The bill in this case was prepared and served well within that time. By the terms of section 9390, after the bill is served, ten days are allowed within which the adverse party may prepare and serve upon the proponent of the bill amendments, if any. Thereafter, if no amendments are served within the time, or, if any, they are accepted, the proposed bill may be presented with the amendments for settlement without notice to the adverse party. So reads the statute, section 9390, supra, and the plaintiff in this case complied with these provisions.

Lastly it is urged that the plaintiff, by participating in certain proceedings had subsequent to the transfer of the action to the district court of Silver Bow county, waived the right of appeal. In support of this ground of the motion, certain minute entries and a copy of the register of actions of the district court of the latter county are certified to this court. We will assume, without deciding, that these certified copies are properly before us in this proceeding. The only participation in the proceedings thereby revealed on the part of the plaintiff is that it appeared and resisted a motion to discharge the attachment. It is also recited that the court overruled the demurrer of the defendants, but without any appearance on the part of the plaintiff in open court.

A party does not waive his right to challenge the jurisdiction of the court by participating in proceedings instigated by his adversary, where all he does is to seek to prevent the loss of a right. See, generally, State ex rel. Bonners Ferry L. Co. v. District Court, 74 Mont. 338, 240 P. 388.

Other proceedings occurring in the district court of Silver Bow county after the perfection of the appeal, disclosed by these certified copies, may not now be considered, as the appellant has a right to stand upon the record as made without losing any of his rights in this court by reason of matters outside the record. Stewart v. First National Bank & Trust Co., 93 Mont. 390, 18 P.2d 801. The motion to dismiss the appeal is denied.

Plaintiff argues that the defendants waived their right to demand a change of place of trial by filing the exception to the sufficiency of the sureties on the undertaking for attachment. This instrument was filed some days prior to the filing of the other papers. This court in the case of State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 P. 1030, 1032, said: "It is true that the motion, to be available on the ground that the action has not been commenced in the proper county, must be made by defendant upon his first appearance." Plaintiff, basing its argument upon the quoted statement, attempts to demonstrate that the filing of the exception to the sufficiency of the sureties was an appearance, and, therefore, a waiver ensued. Chief Justice Brantly, the author of the opinion in the above cited case, cited section 6505, Rev. Codes 1907, now section 9097, Rev. Codes 1921, wherein it is provided that "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 9259, Rev. Codes 1921, provides that within five days after the service of summons the defendants may except to the sufficiency of the sureties, and, if no exception is so made all exceptions to them are waived; whereas the summons in all civil actions allows the defendant twenty days within which to demur or answer after service. Section 9107, Id. Section 9097, cited in the opinion in the Interstate Lumber Co. Case, clearly specifies that the demand for change of place of trial must be made at the time...