State v. District Court of Seventh Judicial Dist. in and for Richland County

• Decision Date: 15 November 1918
• Docket Number: 4314.
• Citation: 176 P. 613,55 Mont. 330
• Parties: STATE ex rel. WESTERN ACCIDENT & INDEMNITY CO. v. DISTRICT COURT OF SEVENTH JUDICIAL DIST. IN AND FOR RICHLAND COUNTY et al.
• Court: Montana Supreme Court

176 P. 613

55 Mont. 330

STATE ex rel. WESTERN ACCIDENT & INDEMNITY CO. v. DISTRICT COURT OF SEVENTH JUDICIAL DIST. IN AND FOR RICHLAND COUNTY et al.

No. 4314.

Supreme Court of Montana

November 15, 1918

Application for writ of supervisory control by the State, on the relation of the Western Accident & Indemnity Company, against the District Court of the Seventh Judicial District, in and for the County of Richland, and C. C. Hurley, Judge thereof. Order to show cause discharged, application denied, and proceeding dismissed.

F. J Mataushek, of Sidney, and O. W. McConnell, of Helena, for relator.

Walsh Nolan & Scallon, of Helena, for respondents.

PIGOTT J.

This proceeding is an application for the writ of supervisory control. Relator is the defendant in the action of Equity Co-operative Association v. Western Accident & Indemnity Company, a corporation, which was brought and is pending in the district court of Richland county. The relief sought is the annulment of an order of respondents court and judge denying the defendant's demand for a change of venue from Richland county to Lewis and Clark county, and a direction to respondents to enter an order changing the place of trial to Lewis and Clark county.

The sole ultimate question involved is: Was the contract upon which the action is founded to be performed in Richland county or in Lewis and Clark county? If it was to be performed in the former county, the relator is not entitled to any relief; if it was to be performed in the latter county, the relief must be granted.

The petition in support of the application for the writ exhibits in substance, these facts: The complaint in the action states that the plaintiff is, and at all the times mentioned therein has been, a corporation of Montana and engaged in business at Enid, Richland county; that the defendant-relator in this proceeding-at all such times has been and now is a corporation of Montana engaged in the business of bonding and indemnifying against loss, with its principal office and place of business at Helena, Mont.; that the defendant, therein called the surety, made a contract with the plaintiff, therein called the employer, by which it covenanted that if the plaintiff should suffer pecuniary loss by certain wrongful acts on the part of an employé named, the defendant would pay the plaintiff such loss not in excess of $3,000-"provided, however: *** (2) That within ten days after the discovery of any loss, the employer shall have delivered notice thereof to the surety, at its home office in Helena, Montana. (3) That within ninety days after the discovery of such loss, the employer shall have delivered to the surety, at its home office in Helena, Montana, written claim stating the items and the dates of the losses. (4) That no suit, action or proceeding shall be brought against the surety by the employer within two months after the delivery of such statement of claim, ***;" that during the life of the contract the plaintiff suffered such loss in the sum of $10,263.35; that plaintiff has complied with all the requirements and conditions of the contract on its part to be performed; and that none of the provisions of the contract has been altered or waived by the parties. Summons was served upon defendant at its home office and place of residence at Helena, in Lewis and Clark county. Defendant made timely demand for an order changing the place of trial from Richland county to Lewis and Clark county, basing it upon the papers and pleadings in the action and two affidavits-the latter averring, among other things not here material, that the defendant's principal place of business has always been, and now is, in Lewis and Clark county; that the contract was made and was to be performed at Helena in that county; "that notice of the discovery of any loss by the plaintiff under said bond was required by the terms and conditions thereof to be given to the defendant at his home office in Helena, Mont.; that the written claim by the plaintiff upon the defendant to be reimbursed for any loss is expressly required by the terms of said bond to be delivered to the defendant at its home office, in Helena, Mont.; that any claim that would be paid under said bond would be paid through the home office of the defendant company in the city of Helena, Mont.; that the contract herein sued upon was to be performed at the city of Helena, in the county of Lewis and Clark, state of Montana, and not in the county of Richland, state of Montana"; that the articles of incorporation certify its principal place of business to be in Helena, Lewis and Clark county, and that the defendant is a resident of that county. In resisting the motion and demand for the change of venue the plaintiff showed by affidavit that its principal place of business and office was at Enid, in Richland county. The respondents denied the demand and retained the action for trial in Richland county, and thereupon the present proceeding was commenced in this court. An order to show cause why the writ of supervisory control should not issue was made which respondents move to quash upon the ground that the petition is insufficient to entitle the relator to relief.

Upon the showing thus made, relator contends that under the provisions of section 6504 of the Revised Codes, as interpreted by this court in State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 P. 1030, the demand for change of venue should have been granted. It is argued that the contract was to be performed in Lewis and Clark county. The case cited is to the effect that an action upon a contract, whether it be express or implied, or in part express and in part implied, must, upon demand of the defendant, be tried in the county in which the contract was to be performed, subject only to the power of the court to change the venue for one or more of the reasons enumerated in divisions 2, 3, and 4 of section 6506 of the Revised Codes, and further that, for breach of a contract to pay money, the county in which the contract was to be performed is the county in which the money was to be paid; and it was held, also, that since a plaintiff is entitled to bring his action in the county where the contract was to be performed, he may, if the place of performance does not appear from the contract, defeat the defendant's demand for change of venue to the latter's residence by affidavit disclosing that the contract was to be performed, in the county where the action was begun.

1. Relator insists that the contract upon its face shows that the payment to the plaintiff for which the defendant covenanted must, when due, be made at Lewis and Clark county pointing to the admitted facts that the defendant's home office, as well as its principal place of business, always has been and is in that county, that the contract was...