State v. Osen
| Citation | 272 N.W. 783,67 N.D. 436 |
| Decision Date | 16 April 1937 |
| Docket Number | 6474 |
| Court | United States State Supreme Court of North Dakota |
Syllabus by the Court.
1. Under the provisions of chapter 315 of the Session Laws of 1931, when an employer is alleged to be in default in the payment of premiums, the bureau is required to " cause suit to be brought" in the courts of Burleigh county or of the county in which the employer is engaged in business for the collection of the premiums and the accrued penalties but such law does not of necessity require the action to be tried in such county.
2. The general law of the state, at the time of the enactment of said chapter 315, permitted the commencement of such an action in any county of the state and authorized the trial of said action in the county selected by the plaintiff unless a change of place of trial to the county of the defendant's residence was demanded in due time. In case of such demand the change was mandatory.
3. Said chapter 315 does not in itself purport to amend the general law governing change of venue, and repeal by implication is not favored unless there be such positive repugnancy between the provisions of the new law and the old law as to work a change. It is only when the language of the new statute is so unambiguous as to permit but one reasonable interpretation, and that contrary to the provisions of the old law, that the old law is modified or changed.
4. In construing the provisions of chapter 315 already cited, held the requirement that the suit shall be brought in the courts of Burleigh county, etc., does not abrogate the right of the defendant to have a change of place of trial to the county of his residence.
Appeal from District Court, Burleigh County; Fred Jansonius, Judge.
Action by the State against Harold Osen, doing business as the Wahpeton Floral Company. From an order denying defendant's motion for a change of venue, defendant appeals.
Reversed.
Forbes & Forbes, for appellant.
Transitory actions shall be brought and tried in the county where the defendant resides. Grimes v. Ericson, 92 Minn. 164, 99 N.W. 621; Duffy v. Duffy, 38 P. 443.
Where action properly triable in county of defendant's residence is begun elsewhere, defendant on proper demand is entitled to change of place of trial as matter of right. Ott v. Kelley, 64 N.D. 361, 252 N.W. 269; Fargo Silo Co. v. Pioneer Stock Co. 42 N.D. 48, 171 N.W. 849; Clark v. Cleveland, 60 N.D. 460, 235 N.W. 342; Hinsey v. Alcox, 38 N.D. 52, 164 N.W. 296.
Where two statutes relate to the same subject matter, such construction should be adopted, if possible, without doing violence to the language employed as will permit both to stand and have force and effect. Iowa Electric Co. v. Scott, 206 Iowa 1217, 220 N.W. 333; Board of Control v. Fuller, 197 Mich. 377, 163 N.W. 921; Murray Bros. v. Buttles, 32 N.D. 565, 156 N.W. 207; Hirning v. Toohey, 50 S.D. 457, 210 N.W. 723.
A repeal by implication is not favored, if the two acts can be reconciled. Schaffer v. State, 173 N.E. 229; United States v. Freeman, 3 How. 556, 11 L. ed. 724; 59 C.J. 857.
A constitutional or statutory provision as to where particular actions shall be commenced or brought does not require that they shall be so tried so as to prevent a change of venue. 40 Cyc. 120; 67 C.J. 97; Huber v. Wanner, 62 N.D. 303, 243 N.W. 661.
P. O. Sathre, Attorney General, and Milton K. Higgins, Assistant Attorney General, respondent.
The plaintiff had a right to try her case in the county she designated when the defendants had not demanded as their right a change to the county of their residence. Kiley v. Meckler, 57 N.D. 217, 220 N.W. 926.
Statutes are to be so construed as to give meaning and intelligent effect to each part thereof. People v. Wintermute, 1 Dak. 63, 46 N.W. 694; Brown County v. Aberdeen, 4 Dak. 402, 31 N.W. 733; State ex rel. Kettle River Quarries Co. v. Duis, 17 N.D. 319, 160 N.W. 751; Murray Bros. v. Buttles, 32 N.D. 565, 156 N.W. 207.
In the absence of express constitutional restrictions, the legislature has the power to designate the counties in which certain actions shall be tried. 67 C.J. 22.
The plaintiff, for and on behalf of the workmen's compensation bureau, brought action in the district court of Burleigh county to recover from the defendant, a resident of Richland county and engaged in business therein, premiums and accrued penalties alleged to be due from defendant as an employer. Within due time defendant made demand for change of the place of trial to the county of his residence. Demand was refused. The district court of Burleigh county denied a motion for change of venue, and from this order the defendant has appealed.
It is the contention of appellant that this statute cited does not modify in any manner the general law with reference to the place of trial of civil actions.
The term "cause suit to be brought" as used in the statute means merely "commence" or "begin." Ledonne v. Commerce Ins. Co. 307 Pa. 1, 160 A. 612; Kaeiser v. Illinois C.R. Co. (C.C.) 2 McCrary, 187, 6 F. 1, 4; Hames v. Judd, 16 Daly, 110, 9 N.Y.S. 743, 744, note. It does not necessarily include the idea of prosecution or trial. Eastland v. Owen (Tex. Civ. App.) 49 S.W.2d 534, 535; and though this latter case cited was reversed (124 Tex. 419, 78 S.W.2d 178) it was not on this point but on what constituted commencement. Such term has the meaning usually attached to the terms "begin" or "commence" as used in statutes of limitation as to time and are used interchangeably. See Hannaman v. Gordon (Tex.) 261 S.W. 1006, 1008.
The term "suit" as used in this statute is a comprehensive one and is synonymous with "action." It is the proceeding brought to enforce collection of the claim. See Philadelphia & R. Coal & I. Co. v. Chicago, 158 Ill. 9, 41 N.E. 1102, 1103; Kuhl v. Chicago & N.W.R. Co. 101 Wis. 42, 77 N.W. 155, 159.
Sections 7415 to 7419 of the Compiled Laws deal with "the place of trial of civil actions." The law governs the place where the action is brought and the place where the action must be tried. They are separate propositions. These sections provide that in such a matter as the collection of money due, "The action shall be tried in the county in which the defendant or some of the defendants reside at the time of the commencement of the action; . . . ." (§ 7417).
Were it not for the limitation in this chapter 315, the bureau could have brought this action in any county in the state and the action would be triable therein unless a change of venue was demanded, as § 7418 provides: "If the county designated for that purpose in the complaint is not the proper county, the action may, notwithstanding, be tried therein, unless the defendant before the time for answering expires demands in writing that the trial be had in the proper county and the place of trial be thereupon changed. . . ." See Agricultural Credit Corp. v. Land Invest. Co. 66 N.D. 343, 347, 265 N.W. 410.
Change of place of trial under this section is mandatory when the defendant has brought himself within the terms of the statute. State v. Bloom, 49 N.D. 224, 190 N.W. 812; Clark v. Cleveland, 60 N.D. 460, 235 N.W. 342; Huber v. Wanner, 62 N.D. 303, 243 N.W. 661; Ott v. Kelley, 64 N.D. 361, 252 N.W. 269; First Nat. Bank v. Rohlik, 66 N.D. 72, 75, 262 N.W. 458.
An action for the recovery of money only is ordinarily transitory in nature and in contemplation of law has no locality. Central Maine Power Co. v. Maine C.R. Co. 113 Me. 103, 104, 93 A. 41, 42.
At common law all actions, local or transitory, were tried where the fact arose. Later, distinction arose between local and transitory and the latter followed the defendant wherever he went. Then transitory actions were localized in a measure, and today the whole theory of such actions is that if Haynes v. Woods, 151 Tenn. 163, 268 S.W. 632. To depart from this theory there must be a well defined purpose expressed.
The power of the legislature to say in what county a civil action is to be tried is undoubted. See People v. Syracuse, 128 A.D. 702, 113 N.Y.S. 707. It is a matter of legislative regulation. See Bond v. Karma-Ajax Consol. Min. Co. 15 Cal.App. 469, 115 P. 254; Latham v. Latham, 178 N.C. 12, 100 S.E. 131; Allen v. Smith, 84 Ohio St. 283, 95 N.E. 829, Ann. Cas. 1912C, 611.
In Security Loan & T. Co. v. Kauffman, 108 Cal. 214, 222, 41 P. 467, 469, the court said, "'the place of trial' is not an element going to the jurisdiction of the court, but is a matter of legislative regulation."
The statute limits the bureau to a choice between the courts of Burleigh county and the courts of any county where the "employer is engaged in business." Respondent urges that as without this statute the bureau could have brought the action in the courts of Burleigh county or of the county in which the employer was engaged in business, the legislature must have intended that the action should also be tried therein; otherwise the legislation is meaningless. But...
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