Meihak v. Schreckenghaust

• Decision Date: 27 March 1941
• Docket Number: 8440.
• Parties: MEIHAK v. SCHRECKENGHAUST et al.
• Court: South Dakota Supreme Court

297 N.W. 122

67 S.D. 603

MEIHAK v. SCHRECKENGHAUST et al.

No. 8440.

Supreme Court of South Dakota.

March 27, 1941

Appeal from Circuit Court, Pennington County; A. R. Denu, Judge.

Action by Ronald Meihak against Floyd Schreckenghaust and others for false imprisonment. From an order denying a motion for change of place of trial, defendants appeal.

Affirmed.

Tom Kirby, of Sioux Falls, T. B. Thorson, of Rapid City, and E V. Morrill, of Sturgis, for appellants.

H. F Fellows, of Rapid City, and Morrison & Skaug, of Mobridge for respondent.

ROBERTS, Judge.

This is an appeal from an order denying a motion for change of place of trial. Defendants applied for and obtained from this court leave under the provisions of SDC 33.07 to appeal from this order. Plaintiff commenced this action in Pennington county for the recovery of damages against Floyd Schreckenghaust Walter A. Miller, and the Western Surety Company as surety on their official bonds. The alleged cause of action is for false imprisonment. It is alleged that defendant Schreckenghaust, as Sheriff of Meade county, and defendant Miller, as Deputy Sheriff, arrested plaintiff on October 2, 1939, in Sturgis, Meade county, South Dakota, and confined him in the jail in that city; that on the following afternoon, the defendants took plaintiff to Rapid City, Pennington county, where they placed him in jail; and that the arrest and the subsequent detention of the plaintiff were without warrant or legal process and were unlawful. The complaint contains other allegations as to the damages sustained by the plaintiff.

Before the time for answering expired, defendants demanded in writing that the place of trial be changed to Meade county. Plaintiff refused to consent to a change of venue, and the defendants secured an order to show cause why the venue and place of trial should not be changed to Meade county. Defendants based their claim upon the ground that defendants Schreckenghaust and Miller were residents of Meade county where they were served with process. The defendant Western Surety Company joined in the demand and consented that the trial be had in Meade county.

Under SDC 33.0304, a defendant is entitled to have an action against him tried in the county of his residence, except as otherwise specified by statute. Fritz v. Hall, 48 S.D. 577, 205 N.W. 378. A change of place of trial may be had under the provisions of SDC 33.0306, " when the county designated * * * in the complaint is not the proper county." The proper county referred to is the county in which actions are required to be tried by SDC 33.0301 33.0302, 33.0303, and 33.0304. The right conferred on a defendant to have the place of trial changed to the proper county is a substantial right, and the court has no discretion except to hear and grant an application based upon a ground which entitles a defendant to a change provided a timely demand and motion in due form are made. Smail v. Gilruth, 8 S.D. 287, 66 N.W. 452; Ivanusch v. Great Northern Ry. Co., 26 S.D. 158, 128 N.W. 333; see, also, Olson v. City of Sioux Falls, 63 S.D. 563, 262 N.W. 85, 103 A.L.R. 1022. It is admitted that defendants Schreckenghaust and Miller resided at the time of commencement of this action in Meade county, but plaintiff contends that the action is properly triable in Pennington county under the provisions of SDC 33.0303. This section reads: "...