State ex rel. Minneapolis Threshing-Mach. Co. v. Dist. Court of Meeker Cnty.

• Decision Date: 14 July 1899
• Citation: 77 Minn. 302,79 N.W. 960
• Parties: STATE ex rel. MINNEAPOLIS THRESHING-MACH. CO. v. DISTRICT COURT OF MEEKER COUNTY et al.
• Court: Minnesota Supreme Court

77 Minn. 302

79 N.W. 960

STATE ex rel. MINNEAPOLIS THRESHING-MACH. CO.

v.DISTRICT COURT OF MEEKER COUNTY et al.

Supreme Court of Minnesota.

July 14, 1899.

Application by the state, on the relation of the Minneapolis Threshing-Machine Company, for a writ of mandamus against the district court of Meeker county and others. Writ granted.

Syllabus by the Court

1. Held, that if a defendant complies, or duly tenders compliance, with all of the provisions of Laws 1895, c. 28, as to change of venue, the place of trial of the action is ipso facto changed, and he is entitled to have the papers and files in the action transferred to the district court of the county of his residence. If the plaintiff desires to traverse the affidavits as to the defendant's residence, it must be by motion to remand, made in the county to which the venue has been changed.

2. If, in such case, the court of the county in which the venue was originally laid retains control of the papers and files of the action, denies a motion to strike the case from its calendar on the ground that the venue has not been changed, and sets the case for trial on a day certain, this court has original jurisdiction to issue to such court, and to the judges and clerk thereof, a writ of mandamus requiring a transfer of the action and the papers and files therein to the court of the county of defendant's residence.

3. Held, further, that the petition herein states facts sufficient to entitle the relator to such writ. John M. Rees, for relator.

J. T. Byrnes, A. T. Nelson, and M. C. Brady, for respondents.

START, C. J.

This is an application, by order to show cause, for a peremptory writ of mandamus, requiring the district court of the county of Meeker, and the judges and clerk thereof, to transfer all of the papers and files in the case of Peter Larson against the Minneapolis Threshing-Machine Company, originally commenced in the district court of Meeker county, to the district court of the county of Hennepin. The respondents make the preliminary objection that the order which they are called upon to answer is not an order to show cause why a peremptory mandamus should not issue as provided by Gen. St. 1894, § 5985. The prayer of the petition, upon which the order was based, and which was served with it, is that a peremptory writ of mandamus issue. The order, although not technically correct, is, in substance, sufficient, taken in connection with the petition. The allegations of the petition are not denied by the respondents, but it is insisted on their behalf: First, that this court has no jurisdiction to issue the writ prayed for; second, if it has, the petition does not state facts sufficient to justify the issuance of the writ. A decision of these questions involves an examination of the admitted facts in this case as stated in the petition. They are, so far as here material, these: On March 10, 1889, Peter Larson, as plaintiff, commenced an action against the relator, the Minneapolis Threshing-Machine Company, a corporation, in the district court of the county of Meeker, by serving a summons upon it at the city of Minneapolis. Thereupon, and on March 28, 1899, the relator, by its attorney, served a demand upon the attorney of the plaintiff in the action for a change of venue from the county of Meeker to the county of Hennepin, and at the same time served upon him an affidavit which, after stating the title of the action and venue, was in these words: ‘John M. Rees, being duly sworn, upon oath says that he is the attorney for the defendant in the above-entitled action; that the place of business of the defendant, and its actual residence, and the residence of all of its officers, is now, and for more than one year prior to the 10th day of March, A. D. 1899, has been, in the county of Hennepin and state of Minnesota; that on the 10th day of March A. D. 1899, the summons and complaint in this action was served.’ Then followed the signature and jurat. After the service of the demand and affidavit, and on the same day, the relator served its answer in the action. On April 13, 1899, the relator duly tendered to the clerk of the district court of the county of Meeker the demand and affidavit, with proof of the service thereof, for the purpose of having him officially file them in his office, change the venue of the action in accordance with the demand, and transfer all the papers and files in the action to the clerk of the court of the county of Hennepin. The fees of the clerk for such services were also duly tendered to him, which he refused to receive, and also refused to so receive and file the demand and affidavits, and transfer the papers and files in the action. The action was noticed for trial in the district court of the county of Meeker, and was placed upon the calendar of the court for trial by the plaintiff at a term thereof commencing on June 13, 1899. The relator appeared specially, and moved the court to strike the case from the calendar on the ground that the place of trial had been changed from the county of Meeker to the county of Hennepin, and tendered proof of the making and service of the demand and affidavit. The relator, also, in open court, in presence of the presiding judge thereof, tendered to the clerk his fee, with the demand and affidavit, and proof of service thereof, for filing, which was refused by the clerk. The presiding judge, however, suggested to the clerk that it was his duty to file all papers tendered. Thereupon the clerk did file the papers so tendered. But the court denied the relator's motion to strike the case from the calendar, and the presiding judge thereof, in open court, and in presence of the clerk, announced the decision of the court upon the motion to the effect that the place of trial of the action had not been changed from the county of Meeker to the ...