McKinney v. Mires

• Decision Date: 17 October 1933
• Docket Number: 7157.
• Parties: McKINNEY v. MIRES et al.
• Court: Montana Supreme Court

26 P.2d 169

95 Mont. 191

McKINNEY v. MIRES et al.

No. 7157.

Supreme Court of Montana

October 17, 1933

Appeal from District Court, Silver Bow County; T. E. Downey, Judge.

Suit by Peter McKinney against Roy Mires and others. From an order denying defendants' separate motions for change of venue defendants appeal.

Reversed and remanded, with directions.

Justin M. Smith and George Y. Patten, both of Bozeman, for appellants Roy Mires, Roland J. White, Story Gold Dredging Co., Nelson Story III, and Charles Vandenhook.

Murphy & Whitlock, of Missoula, for appellants Robert and Richard B Porter.

E. H Casterlin, of Salmon, Idaho, and H. L. Maury, of Butte, for respondent.

MATTHEWS Justice.

Appeal from an order denying defendants' motion for change of venue.

On January 21, 1932, Peter McKinney, a resident of Idaho, brought suit in the district court of Silver Bow county against Roy Mires, Roland J. White, Robert Porter, Richard B. Porter, all nonresidents of this state, and Story Gold Dredging Company, Nelson Story III, and Charles Vandenhook, as administrators of the estate of Nelson Story, Jr., residents of Gallatin county, Montana, to recover 25 per cent. of the shares of the capital stock of the dredging company, require an accounting from Mires and the administrators, and to enjoin the transfer of stock to individual defendants.

On February 6, 1932, all of the defendants appeared by separate demurrers, and, at the same time, each filed notice of motion and demand for a change of venue, and affidavit in support thereof. The several notices of motion and affidavits were met by counter affidavits; they were united for the purpose of a hearing, the motions heard jointly, and by a single order denied. The defendants have jointly appealed from the order.

The complaint alleges that the plaintiff, a resident of Idaho, Mires, a resident of California, and Nelson Story, Jr., a resident of Gallatin county, Montana, in July, 1932, at Norwegian Gulch, in Madison county, Montana, entered into an agreement of partnership and joint adventure for the dredging of placer mining ground there located and owned, or controlled, by Story; Story to furnish the ground, and McKinney and Mires the dredge, the proceeds to go 50 per cent. to Story, and 25 per cent. each to McKinney and Mires. It is alleged that the plaintiff expended time and money on the project; that a dredge was secured in California and installed on the property in Madison county, and thereafter Story and Mires excluded the plaintiff from participation in the adventure, incorporated the dredging company, and transferred to it all the rights of the partnership. Story died in November, 1932.

The complaint alleges that the plaintiff is entitled, by reason of the facts, to have issued to him 25 per cent. of the capital stock of the dredging company, to be deducted from stock standing in the name of Mires, and of White, Robert Porter, or Richard (Andrew) B. Porter, who took stock with notice of plaintiff's contract. It is alleged that, pending this suit, the above-named persons should be enjoined from transferring any shares of stock to any person other than the plaintiff, or in anywise incumbering the stock held by them, and it is prayed that the corporation be so enjoined from transferring any of such stock on the books thereof. The application for injunction is supported by the affidavit of the plaintiff filed with the complaint.

The record clearly shows that the contract involved in suit was made and was to be performed in Madison county; that no party to the suit resides in, or was found and served in, Silver Bow county. It further shows that the corporation has its principal place of business at Bozeman, Gallatin county, which is also the place of residence of both of the administrators of the Story estate, and that the corporation and the administrators were served with summons in Gallatin county. Mires, a resident of California, was served at the dredge in Madison county, although he states in his affidavit that he "is now temporarily making his headquarters at Bozeman." "Now," of course, refers to the time the affidavit was made.

It does not appear from the record how or when, if at all, the nonresident defendants, White and the two Porters, were served; it would seem that they made voluntary appearance.

The demand made is that the place of trial be changed to Gallatin county. The motions and demands made are double-barreled, as they are based on two grounds: "(1) That none of the defendants reside or were served with summons in Silver Bow county"; and (2) "that the convenience of witnesses and the ends of justice would be promoted by changing the place of trial to Gallatin county." Each application is accompanied by an "affidavit of merits." With respect to this second ground, the application is premature.

In so far as pertinent here, section 9098, Revised Codes of 1921, declares that "the court or judge must, on motion, change the place of trial: *** 1. When the county designated *** is not the proper county. *** 3. When the convenience of witnesses and the ends of justice would be promoted by the change."

A motion for a change of place of trial on the first ground is based on the contention that the plaintiff has chosen the wrong county for the commencement of his action, contrary to the provisions of sections 9093 to 9096, Revised Codes 1921; on this ground the defendant must move "at the time he appears and answers or demurs" (section 9097), or his motion comes too late. Dawson v. Dawson, 92 Mont. 46, 10 P.2d 381.

On compliance with the statute and on a proper showing that the action was commenced in the wrong county, a defendant is entitled, on this first ground, to a change to the proper county as a matter of right. Feldman v. Security State Bank, 62 Mont. 330, 206 P. 425. On the contrary, a motion based upon the ground designated 3 above appeals to the sound discretion of the court, and can only be made after the defendant has answered and the court is in a position to determine whether or not there will be a trial, what are the issues, and, if issues of fact are presented, whether or not a change of the place of trial will be necessary in order to serve the convenience of witnesses. Dawson v. Dawson, above, and cases therein cited. A motion made on this ground concedes that the action was commenced in the proper county, but urges that, regardless of the rights of the plaintiff, in the interests of justice the court should send the case to some other county for trial. It is apparent that the court did not err in denying the motions for change on the second ground urged.

Reverting therefore, to the first ground, we find that the Codes require that actions for the recovery, or partition, of real property, or of the determination of any right therein, or for the foreclosure of a lien or mortgage on real property, must be brought in the county in which the property, or some part thereof, is situated (section 9093); that actions for the recovery of a penalty and against certain public...