State v. District Court of First Judicial Dist. in and for Lewis and Clark County
| Decision Date | 01 May 1918 |
| Docket Number | 4212. |
| Citation | 172 P. 1030,54 Mont. 602 |
| Parties | STATE ex rel. INTERSTATE LUMBER CO. v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al. |
| Court | Montana Supreme Court |
Application by the State, on the relation of the Interstate Lumber Company, against the District Court of the First Judicial District in and for Lewis and Clark County and Lee Word, a judge thereof, for an order of the Supreme Court under its supervisory power annulling an order of said District Court granting defendant's motion for change of venue in an action wherein relator was plaintiff and Jake Tyanich defendant. Granted, and order annulled.
Henry C. Smith, of Helena, for relator.
W. D Rankin and R. L. Dick, both of Helena, for respondents.
On February 11th of this year the Interstate Lumber Company, a Montana corporation, brought an action in the district court of Lewis and Clark county against Jake Tyanich to recover the sum of $130.08, the agreed price of lumber sold and delivered to him between March 29 and April 18, 1916, with interest thereon from the latter date. The defendant appeared in the action by a general demurrer. At the same time he filed a motion asking that the cause be transferred to Silver Bow county for trial, on the ground that at the time the action was commenced and he was served with summons he was a resident of that county. The motion was supported by his own affidavit disclosing the fact of his residence in Silver Bow county and the service of summons there. The plaintiff, not controverting these facts, resisted the motion on the ground that the contract was made in Lewis and Clark county and was to be performed there, and hence that it had the right to bring the action and have it tried in that county. To support this contention it presented an affidavit by Albert Neider its general manager, which disclosed these facts: That at the time the sale was made, the defendant was engaged in mining near Helena, in Lewis and Clark county; that the lumber was sold to him by the plaintiff at its place of business in Helena and was delivered to him at his mine; and that he used the same in the erection of a building on his mining ground, where the said building now is. The statements contained in this affidavit are not controverted. The court overruled plaintiff's contention and ordered the cause transferred to Silver Bow county. Thereupon the plaintiff made application to this court for an order under its supervisory power, annulling the order transferring the cause and requiring the court to retain it for trial in Lewis and Clark county. In response to an order to show cause issued by this court, the district court appeared by counsel and moved to quash it and dismiss the application upon several grounds all of which present the same question, viz. whether, upon the facts stated in the petition heretofore recited, the relator is entitled to the relief demanded. The proceeding was thereupon submitted for decision.
Sections 6501-6503, inclusive, of the Revised Codes, designate in what county an action for any of the causes therein enumerated must be tried, subject to the power of the court to change the place of trial as elsewhere in the Codes provided. Section 6504 provides:
The first sentence of this section is general in its terms, and but for the last sentence in it would apply to any action whatsoever for a cause other than one of those enumerated in some one of the preceding sections. The place of trial is therein made to depend upon the residence or whereabouts of the defendant at the time the action is commenced. The last sentence, however, excepts out of the application of this general provision actions upon contract and actions for torts, and requires the place of trial in these cases to be determined by considerations wholly apart from the residence or whereabouts of the defendant. In the one case, the place of trial is determined by an answer to the inquiry, Where was the contract to be performed? and in the other, Where was the tort committed? The use of the permissive auxiliary "may" instead of "must," expressive of obligation or necessity, used in the first sentence, becomes of no significance when we note that under section 6505 an action for any cause may lawfully be tried in any county unless the defendant asks for a change to the proper county as therein provided. If it should be assigned a permissive force only, it would render the sentence meaningless. This would be in violation of the general rule of construction applicable, viz. that in construing a statute every word, clause, and sentence must be given effect, if it is possible to do so, to the end that its different provisions may be made consistent and harmonious and each be assigned an intelligent meaning. State ex rel. Anaconda C. M. Co. v. District Court, 26 Mont. 396, 68 P. 570, 69 P. 103; Stadler v. City of Helena, 46 Mont. 128, 127 P. 454; 36 Cyc. 1128. On the other hand, if it be given the same force as that of the auxiliary "must" the sentence becomes harmonious and consistent with the rest of the section and thus expressive of a definite intention of the Legislature in enacting it, to except out of the scope of the general statement in the first sentence the two classes of cases mentioned. We therefore hold that it should be given the force of "must." True, the sentence is not expressed technically in the form of an exception, but mere form of expression not important when the purpose intended and sought to be accomplished by the Legislature is ascertainable and made reasonably certain by applying the rule of construction referred to. 36 Cyc. 1106, 1107.
To determine, then, whether an action in either of these two classes has been commenced in the proper county, the only question the court may consider and determine is where, in the one case, the contract was to be performed, or, in the other, where the tort was committed. As will appear below our own decisions are not in harmony, but in two of them at least this court impliedly adopted the construction we have given the last sentence of the section, by refusing to recognize the residence of the defendant as a material consideration. Oels v. Helena & Livingston S. & R. Co., 10 Mont. 524, 26 P. 1000; State ex rel. Coburn v. District Court, 41 Mont. 84, ...
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