Olson v. City of Sioux Falls

• Decision Date: 23 July 1935
• Docket Number: 7792
• Citation: 262 N.W. 85,63 S.D. 563
• Parties: A. T. OLSON, et al, Respondents, v. CITY OF SIOUX FALLS, Appellant.
• Court: South Dakota Supreme Court

63 S.D. 563

262 N.W. 85

A. T. OLSON, et al, Respondents,

v.

CITY OF SIOUX FALLS, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. L. L. Fleeger, Judge #7792—Affirmed Hugh S. Gamble, Sioux Falls, SD Attorney for Appellant. Louis H. Smith, Sioux Falls, SD Attorney for Respondents. Opinion filed July 23, 1935

ROBERTS, J.

Plaintiffs instituted this action to recover damages for the depreciation in value of their land caused by reason of the alleged pollution of the Big Sioux river by defendant city. The action was tried at the September term of the circuit court in the year 1934, and resulted in a disagreement of the jury. Plaintiffs then moved for a change of the place of trial claiming that a fair and impartial trial could not be had in Minnehaha county; that the adverse interest of the inhabitants of the city of Sioux Falls in the question involved prevented the selection of an unbiased jury in that county to try the facts. The motion was granted, and Turner county was designated as the place of trial The ruling of the court is assigned as error.

The order is sought to be reversed for the reasons that the statute does not recognize the right of a plaintiff to apply for a change of venue; that if such right may be exercised by a plaintiff in a proper case, these plaintiffs, having brought this action in Minnehaha county, having joined issues and tried the action in that county resulting in a disagreement of the jury, have waived their right to a change to another county; and that the showing made by plaintiffs was in any event insufficient to entitle them to the relief granted.

Section 2328, Rev. Code 1919, so far as material here, provides:

“Section 2328. Change of Venue Asked by Defendant. If the county designated for that purpose in the complaint be not the county in which the defendant resides, the action may, notwithstanding, be tried therein unless the defendant, before the time for answering expires, demand in writing that the trial be had in the county in which he resides, and the place of trial be thereupon changed by consent of the parties or be order of the court, as provided in this section. If the county designated is not the proper county and where the court changes the place of trial on account of the action having been brought in the wrong county, the court, in its order granting the change of place of trial, may in its discretion allow to the moving party such terms as to it may seem just; and in case of a dismissal of the action or change of place of trial, the payment of the amount awarded by the court shall be made a condition precedent to the commencement of another action or the further prosecution of the action where change of place of trial has been granted. The court may change the place of trial in the following cases: 1. When the county designated for that purpose in the complaint is not the proper county. 2. Where there is reason to believe that an impartial trial cannot be had therein. 3. When the convenience of witnesses, and the ends of justice would be promoted by the change. ...”

If an action is not commenced in the proper county, the defendant before the time for answering expires may demand a change of place of trial to the proper county. See Irwin v. Taubman, 128 N.W. 617; id. Ann. Cas. 1915C, 1203. The defendant may be held to have waived his right to a change of the place of trial on this ground unless he makes demand within the time fixed by statute. These provisions are made applicable to a motion by defendant upon the specific ground mentioned. The plaintiff in an action as well as the defendant may move to change the place of trial upon the other grounds that an impartial trial cannot be had or that the convenience of witnesses and the ends of justice will be promoted by the change. This construction is in harmony with expressions of other courts construing similar statutes. Crary v. Reid, 3 How. Prac. (NY) 76; Grewell v. Walden, 23 Cal. 165; Cook v. Pendergast, 61 Cal. 72. Counsel for defendant calls attention to the heading of section 2328. This was inserted be the Code commission for convenience of reference, and is not intended to lessen or expand the meaning of the language of the section. See Anderson v. Beadle County, 211 N.W. 968.

Sections 2325 and 2326, Rev. Code 1919, specifically provide that certain actions, including actions for injuries to real property, shall be local. Section 2327 provides that: “In all other cases the action shall be tried in the county in which the defendant or defendants, or any of them, shall reside at the commencement of...