State ex rel. Ballord-Trimble Lumber Company v. District Court of Clay County

• Decision Date: 20 December 1912
• Docket Number: 18,010 - (272)
• Parties: STATE ex rel. BALLORD-TRIMBLE LUMBER COMPANY v. DISTRICT COURT OF CLAY COUNTY and Others
• Court: Minnesota Supreme Court

139 N.W. 135

120 Minn. 99

STATE ex rel. BALLORD-TRIMBLE LUMBER COMPANY v. DISTRICT COURT OF CLAY COUNTY and Others

Nos. 18,010 - (272)

Supreme Court of Minnesota

December 20, 1912

Petition by Ballord-Trimble Lumber Company for an alternative writ of mandamus, directing the judges and clerk of the district court for Clay county to strike from the trial calendar of that court the case of Tully v. Ballord-Trimble Lumber Company, and transmit the records to the office of the district court for Hennepin county, or show cause why they had not done so. Peremptory writ granted.

SYLLABUS

Venue -- primary purpose of action.

The general rule is that actions must be brought and tried in the county where the parties reside; but if the subject-matter of the action is situated in a county other than the one in which the parties reside, and the primary purpose of the action and the principal relief sought relate to such subject-matter, then the action must be brought and tried in the county where such subject-matter is situated. It is not sufficient to bring a case within the exception to the rule that the complaint asks for relief as to the subject-matter which is merely incidental to the primary purpose of the action.

Transitory action.

Complaint construed, and held, that the primary and principal relief sought to be obtained by the action was an accounting, with the cancelation of a real estate mortgage as incidental relief, and that the action is a transitory one.

Corporation -- home office -- change of venue.

The words "residence" and "home" are not, as ordinarily used, synonymous; but when used, as in this case with reference to a corporation and its general office, the word "home" is the equivalent of "residence." The affidavit herein for the change of the place of trial was sufficient. The change of the place of trial was not waived.

Corrigan & Darling, George Conway, and V. C. Sherman, for petitioner.

W. B. Douglas and Charles S. Marden, for respondents.

OPINION

START, C.J.

This is a petition, heard on an order to show cause, for a peremptory writ of mandamus, directing the district court of the county of Clay and the judges thereof to transfer all the papers and files in the case of D. W. Tully v. Ballord-Trimble Lumber Company, which was brought in the county of Clay, to the district court of the county of Hennepin. Subsequent to the service of the summons on the defendant in such action, and before the time for answering had expired, it served upon the attorney for the plaintiff an affidavit of residence of defendant and a demand that the place of trial be changed from the county of Clay to the county of Hennepin, and the originals of such affidavit and demand, with due proof of service, were filed with the clerk of the court of the county of Clay, who refused to transmit the papers and files in the action to the clerk of the district court of the county of Hennepin.

The affidavit, so far as here material, is as follows: "H. L. Trimble, being on oath, duly sworn, says: That he is the president of the Ballord-Trimble Lumber Company, the defendant corporation in the above-entitled action. That at the commencement of said action the home and general office of the Ballord-Trimble Lumber Company was and still is in the city of Minneapolis, county of Hennepin, and state of Minnesota, and that all of its books and records are kept in the said general office of the defendant company in the said city of Minneapolis. That the defendant, the Ballord-Trimble Lumber Company, keeps all of its books and records of original entry in its said general office in the city of Minneapolis, and that none of its records as original entries are kept within the county of Clay, in the state of Minnesota."

The defendant thereafter answered, and the plaintiff replied, and noticed the cause for trial in the district court of the county of Clay, and caused the case to be placed upon the calendar of the court for trial. Thereupon the defendant moved the court to strike the cause from its calendar and to direct the clerk to transmit the files and records in the action to the clerk of the district court of the county of Hennepin. The motion was denied. Thereupon the defendant applied to and obtained from this court an order to show cause.

The contention of the respondents is to the effect that the order to show cause should be discharged for the reasons following:

1. The action, as shown by the allegations of the complaint, is a local one; hence the venue was properly laid in the county of Clay, or, in other words, the action is primarily one to cancel the record of a mortgage on land in that county.

If the premises of this contention be correct, the conclusion is also. Kommer v. Harrington, 83 Minn. 114, 85 N.W. 939.

The complaint alleges in effect that at Barnesville, this state between March 16, 1901, and August 16, 1909, the parties had mutual dealings, during which time the plaintiff purchased from the defendant large quantities of lumber and other merchandise; that between such dates there was an open and mutual account growing out of such purchases and payments, and on April 27, 1908, the defendant falsely represented to the plaintiff that he was indebted to it on such account in the sum of $1,200, and demanded that he execute to it his promissory note in that sum and secure it on real estate owned by him in the county of Clay, such sum to be credited on his account; that the plaintiff, relying on such false representation and believing it to be true, executed such mortgage; that such representation was untrue, as defendant then well knew, and in reliance thereon the plaintiff overpaid such mutual account in the sum of $2,000; that the plaintiff has repeatedly requested the defendant to enter into an accounting with him to determine the exact condition of the account, but it has at all times refused so to do; and, further, that such account is long and contains a great number of items, and...