Shields v. Shields

• Citation: 139 P.2d 528,115 Mont. 146
• Decision Date: 09 July 1943
• Docket Number: 8379.
• Parties: SHIELDS v. SHIELDS.
• Court: Montana Supreme Court

139 P.2d 528

115 Mont. 146

SHIELDS v. SHIELDS.

No. 8379.

Supreme Court of Montana

July 9, 1943

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

Suit for divorce by John M. Shields against Hazel A. Shields. From an order granting a change of venue, plaintiff appeals.

Reversed.

ADAIR and MORRIS, JJ., dissenting.

J. F Emigh, of Butte, for appellant.

W. E Keeley, James B. Castles, and Maurice J. MacCormick, all of Deer Lodge, for respondent.

JOHNSON Chief Justice.

Plaintiff appeals from an order granting a change of venue, which is an appealable order. Sec. 9732, Rev.Codes; Helena Adjustment Co. v. Predivich, 98 Mont. 162, 37 P.2d 651.

The action was filed in Silver Bow county, in which at the time of the parties' separation in 1940 both resided, and in which plaintiff still resides, and in which service was had on defendant. Defendant's demand for change of venue to Madison county was made and granted upon the ground that at the time of service of summons she was a resident of that county. The fact of her residence there is not questioned by plaintiff upon this appeal.

The action was filed on November 25, 1941, but service was not had until April 8, 1942, when defendant was in the city of Butte, in Silver Bow county, at the request of her attorneys in connection with her taking of plaintiff's deposition in another cause pending between them. The record indicates that defendant had been in Silver Bow county at various times since the parties' separation. No contention is made here that the service upon her was improper or questionable, and defendant made no special appearance to question its validity but appeared generally by demurrer and motion for change of venue. Consequently the sole issue here is whether, under section 9096, Revised Codes, which the parties agree is the controlling statute, the order for change of venue was erroneous.

Section 9096, Revised Codes, reads in part as follows: "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 state, or, if residing in the state, 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 ***."

As noted above, defendant resides within the state and no contention is made that her place of residence was unknown to plaintiff. Therefore the portion of the section applicable is the first part which provides that "the action shall be tried in the county [1] in which the defendants, or any of them, may reside at the commencement of the action, or [2] where the plaintiff resides, and the defendants, or any of them, may be found."

It is clear that under the first provision noted in the last paragraph above, Madison county, where defendant resides, is a proper county for the trial of the action. On the other hand, the second provision seems to provide that Silver Bow county, where plaintiff resides and defendant was found and served, is also a proper county for the trial thereof.

Section 9097, under which the demand for change of venue is made, provides for such change only "if the county in which the action is commenced is not the proper county." Therefore if Silver Bow county is the proper county under the second provision, there is no statutory authorization for removing the case to Madison county, even though the latter is admittedly the proper county for trial under the first provision. In short, if both are proper counties, the action must stay where it was filed. Bergin v. Temple, 111 Mont. 539, 111 P.2d 286, 133 A.L.R. 1115. Consequently the only question is whether the second provision, as well as the first, applies to this case; if so, the order granting the change of venue was erroneous.

Defendant speaks of this action as a transitory one and cites the decisions of certain jurisdictions to the effect that it is the general policy of the law that in transitory actions defendant is the favored party, with a right to have the action brought in the county of his residence. However the general policy of the law differs in various states as determined by the legislatures, and it should be noted that in State ex rel. Mackey v. District Court, 40 Mont. 359, 106 P. 1098, 1101, 135 Am.St.Rep. 622, this court said: "in general transitory actions may be tried wherever personal service can be made on the defendant."

The exact question seems never to have been adjudicated in this state. Defendant relies upon some wording in McKinney v. Mires, 95 Mont. 191, 26 P.2d 169, 172, as follows: "it is purely an equitable suit, and is transitory, and the designation of the proper county is found, not in the provision with respect to actions upon contracts, but in the first or main clause of section 9096, above; i. e., the place of residence of 'the defendants, or any of them,' is controlling."

Defendant's argument is that the court's reference to defendant's place of residence and to "the first or main clause of section 9096" indicates that this court regarded the entire remainder of the section as subordinate. But what the court was pointing out was that that section applied rather than the section relating to contract actions, and that the subordinate provision with regard to defendants who resided outside of the state or whose residence within the state was unknown to plaintiff did not apply.

It is fundamental that the language of a decision must be interpreted with reference to the facts of the case, and so considered the language, while not a precedent on this point, bears out the contention of the plaintiff rather than of the defendant. In that case the defendants were served in the county of their own residence and not in the county of plaintiff's residence, as here. The decision shows that the court had that point in mind, for it mentioned the fact that one ground of motion was "that none of the defendants reside or were served with summons in Silver Bow county," and proceeded to say: "Under the facts alleged it is manifest that Silver Bow county is not the proper county for the trial of the 'action' under any one of the foregoing designations. *** It follows that these defendants, residing and served with summons in Gallatin county, were entitled to have the cause removed to that county on their demand."

Thus it seems clear that if any weight is to be given McKinney v. Mires in this regard, it is that the court was cognizant of the provision here in point and of the significance of the fact that the defendants were found and served in the county of their own residence and not in that of plaintiff's residence.

In regard to the question of the "general spirit and policy of the law" which defendant stresses, it must be remembered that it is primarily for the legislature to declare that spirit and policy. "The common law of England, so far as it is not repugnant to or inconsistent with the constitution of the United States, or the constitution or laws of this state, or of the codes, is the rule of decision in all the courts of this state." Sec. 5672, Rev.Codes. "The codes establish the law of this state respecting the subjects to which they relate ***." Sec. 4, Rev.Codes.

The legislature having spoken upon this subject, its declaration is conclusive upon the courts and the only question is of the construction of the legislative provision, bearing in mind that the provision must be construed according to the context and approved usage of the language (sec. 15, Rev. Codes), which necessarily includes the accepted grammatical rules. It is apparent that under the rules of grammar each of the expressions [1] and [2] above which are connected by the disjunctive "or," modify or relate to the word "county." It is also a well recognized rule that where two such clauses or phrases are so expressed in the disjunctive they are co-ordinate and either is applicable to any situation to which its terms relate.

Thus Webster's New International Dictionary (2d Ed.) defines the conjunction "or" as "A co-ordinating particle that marks an alternative; as, you may read or write--that is, you may do one of the things at your pleasure, but not both. It often connects a series of words or propositions, presenting a choice of either; as, he may study law or medicine, or he may go into trade." Following the accepted definition and rules, it follows that the action may be tried either in the county in which defendant resides or in the county in which plaintiff resides and defendant "may be found." The question then is whether defendant was "found" in Silver Bow county. This court's emphasis upon the place of service in the above quotations in McKinney v. Mires, supra, indicates the assumption that "found" means "found for legal service." The dictionary mentioned above defines "find," of which "found" is the past tense and past participle, as "to come upon by seeking or by effort."

Section 9110, Revised Codes, provides that summons may be served by the sheriff of "the county where the defendant is found." Section 9112 provides for service on the Secretary of State for a corporation, none of whose qualified officers, agents or employees "can be found within the state, upon whom service of process can be made." Section 9117 provides for service by publication when the defendant resides out of, has departed from, or "cannot, after due diligence, be found" within the state.

It was held in Tiedemann v. Tiedemann, 36 Nev. 494, 137 P 824, 826, that with reference to a venue statute conferring jurisdiction in the court of a county "in which the...