State ex rel. Johnson v. District Court of Waseca County
| Decision Date | 07 February 1913 |
| Docket Number | 18,034 - (275) |
| Citation | 139 N.W. 947,120 Minn. 458 |
| Parties | STATE ex rel. C. P. JOHNSON and Another v. DISTRICT COURT OF WASECA COUNTY and Others |
| Court | Minnesota Supreme Court |
C. P Johnson and Carl P. Johnson obtained from this court an order directed to the district court for Waseca county, Hon. Arthur B. Childress, judge thereof, and the clerk thereof, to show cause why a peremptory writ of mandamus should not issue directing the officers above named to transfer the files and papers in the case of Dube v. City of Waseca, C. P. Johnson and Carl A. Johnson, co-partners as C. P. Johnson & Son, from the district court for Waseca county to the district court for Hennepin county. The facts are stated in the opinion. The respondents made return and answer to the petition for the order to show cause, and moved to dismiss the order. Order discharged.
Change of venue.
R.L 1905, § 4096, providing that, if there are several defendants residing in different counties, the trial shall be had in the county upon which the majority of them unite in demanding does not authorize a change of venue in an action to which a municipal corporation is a party defendant from the county in which such municipality is located, though a majority of the individual defendants unite in demanding a change to the county of their residence.
John Junell, for relators.
Senn & Gallagher and Moonan & Moonan, for respondents.
Order to show cause why mandamus should not issue to compel the allowance of a change of venue. On September 12, 1912, the relators, who were then, and still are, residents of Minneapolis, were sued in Waseca county, together with the city of Waseca, for wrongful death. On October 2, 1912, the relators duly demanded a change of venue to Hennepin county, appearing specially for that purpose, and, the same having been denied, this order to show cause was obtained.
"The real issue in the matter before us," says counsel for relators, "is the question of whether or not a transitory action may be removed, as against a municipality, from the county in which that municipality is located, to the county of residence of the majority of the defendants." But in our opinion such is not the issue, for actions against municipalities are inherently local. Pack Woods & Co. v. Township, 62 Mich. 122, 28 N.W. 746; Jones v. Town, 97 N.C. 86, 2 S.E. 346; Oil City v. McAboy, 74 Pa. St. 249; City v. Superior Court, 4 Wash. 655, 30 P. 1053; City v. Fox, 60 Ohio St. 340, 54 N.E. 370; Heckscher v. Philadelphia (Pa.) 9 A. 281. This is the common-law rule, and we are satisfied that it has not, as claimed by the relators, been changed in this state.
R.L. 1905, §§ 4089, 4090, 4091, 4092, 4094, specifically provide that certain actions shall be local; section 4095 provides that "all actions not enumerated in [sections] 4089-4094 shall be tried in the county in which one or more of the defendants resided when the action was begun"; and section 4096 provides that, "if there are several defendants residing in different counties, the trial shall be had in the county upon which the majority of them unite in demanding, or, if the numbers be equal, in that whose county seat is nearest." It is upon these provisions that the relators rely, insisting that, as an action for tort against a municipality is not thereby made local, it must be deemed to be transitory. It is to be noted, however, even as asserted by the relators, that the statutory classification is based almost exclusively upon the nature of the action, and not upon the character of the defendant; and we do not think that from such a classification any intention is to be inferred to change the common-law rule as to actions against municipalities, the local character of which actions inheres in the very nature of the defendant.
Furthermore section 4095 has no bearing upon the character of such an action, for under the same the venue in an action against a municipality may originally be laid in the county in which the municipality is situated, no matter how many individual defendants there may be. The venue, when so laid, however, would be subject to change under section 4096, if such section applies to an action to which a municipality is a party defendant, and this is the ultimate question to be determined in this case. We do not think this section so applies, for, as we have stated above, actions against municipalities must still be regarded as local. The presumption is "that the legislature, in the enactment of statutes, does not intend to overturn long-established principles of law, unless such intention is made to clearly appear either by express declaration or by necessary implication." In re Garcelon, 104 Cal. 570, 584, 38 P. 414, 417, 32 L.R.A. 595, 601, 43 Am. St. 134, 139; 3 Dunnell, Minn. Digest, 8958. And especially in a matter like the one in...
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