Thorson v. Weimer

Decision Date24 April 1930
Citation230 N.W. 596,59 N.D. 457
CourtNorth Dakota Supreme Court

Appeal from the County Court of Cass County, Paulson, J. From an order denying his application for change of venue Wirtz, and interpleaded defendant in the garnishment action appeals.


Harold B. Nelson, for appellant.

Clair F. Brickner, for respondent.

Christianson J. Burke, Ch. J., and Birdzell, and Burr, JJ., concur.


Wirtz, who was interpleaded as a defendant to the garnishee action, appeals from the order of the county court in Cass county denying his motion for a change of venue from Cass county to Benson county. The material and undisputed facts are as follows: On or about August 31, 1929, the plaintiff brought this action in the county court of Cass county to recover of the defendant Weimer $ 250.00 upon a promissory note, and $ 73.50 upon a book account. At the time of the issuance of the summons in the main action, the plaintiff also instituted a garnishment action, naming the Fillmore Equity Elevator Company, of Fillmore, North Dakota, as garnishee. The summons in the main action and the garnishee summons and affidavit for garnishment were served upon the defendant Weimer, in Benson county, in this state, on September 2, 1929, and on that same day the papers in the garnishment action were served upon the garnishee. The defendant Weimer made default both in the main action and in the garnishment suit, and on September 26, 1929, judgment was rendered against him in the main action for the full amount claimed in the complaint. On September 17, 1929, the garnishee, Fillmore Equity Elevator Company, made an affidavit of disclosure, wherein it stated that it had in its possession and under its control 561 1/2 bushels of rye belonging to the defendant Weimer, and to one Wirtz. On October 18, 1929, the plaintiff applied to this court for an order that Wirtz (the person mentioned in the answer of the garnishee as having an interest in the rye held by the garnishee) be interpleaded as a defendant to the garnishee action; and the court, thereupon, entered an order that Wirtz be interpleaded as a defendant in such action. On October 24, 1929, a copy of the application and order for interpleader, together with a notice as prescribed by § 7582, Comp. Laws 1913, were served upon said Wirtz. On November 8, 1929, the said Wirtz served upon plaintiff's counsel a demand for a change of venue. The demand was accompanied by an affidavit showing that Weimer, the defendant in the main action, and Wirtz, the interpleaded defendant in the garnishment action, were residents of Benson county.

It is apparent that the principal ground of the demand for a change of venue was that the only issue remaining in the action was one between the plaintiff and Wirtz, and that Wirtz was a resident of Benson county and hence entitled as a matter of right to a change of venue to that county upon timely demand. But the demand stated that it "is made on the ground of convenience of witnesses also;" and the affidavit in support thereof stated, "that the witnesses to prove the issues herein are all residing in Benson county, N.D." The demand was that the trial of the action and the issue between Wirtz and the plaintiff be changed "from the county court of Cass county, North Dakota, to the county court of Benson county, North Dakota, a county court with increased jurisdiction; or, if it shall be determined that the said county court of Benson county, North Dakota, is without jurisdiction to hear, try and determine the issues herein between the plaintiff and the said interpleading defendant, then that the place of trial of this action be changed from the county court of Cass county, North Dakota, to the district court of Benson county, North Dakota."

On November 12, 1929, the interpleaded defendant prepared what is denominated an answer and counterclaim wherein he claimed that he had a lien upon the rye held by the elevator company on account of advances which he had made to Weimer under a cropper's contract. Plaintiff's counsel admitted service on such answer and counterclaim on November 18, 1929. Later the plaintiff interposed a reply denying the new matter set forth in Wirtz's answer and counterclaim. Plaintiff's counsel, thereupon, pursuant to notice, moved the said county court of Cass county on December 7, 1929, that the demand, and application of Wirtz, for a change of venue to Benson county be denied. The matter came on to be heard pursuant to such motion.

Upon the hearing, the interpleaded defendant Wirtz submitted an affidavit (in addition to the one served with the demand for a change of venue) stating "that the only issue for determination herein is the issue between the plaintiff and this affiant as an interpleaded defendant and that the said issue relates solely to the claim of this affiant under his answer and counterclaim herein for advancements made to the defendant as affiant's tenant during the year 1929, and to the lien of this affiant upon the crops and property in the hands of the garnishee herein, which said crops and property this affiant has asserted and will maintain are subject to his landlord's lien for such advancements; that said crop was raised on premises situated in Benson county, North Dakota; that the elevator where the said grain is deposited is in Benson county, North Dakota; . . . that affiant made his demand for change of venue herein seasonably . . .; that affiant is a resident of Benson county and has been such for a great number of years last past; that affiant's place of business is at Knox in said Benson county, North Dakota, and that affiant was served with process herein in the said Benson county, North Dakota." The affidavit concluded with a prayer, not only that plaintiff's motion be denied but "that the place of trial of the above action be changed from the county of Cass in the state of North Dakota, to the county of Benson, in the state of North Dakota, on the ground and for the reason that the county of Benson is the county of the residence of the interpleaded defendant and on further ground that the convenience of all the witnesses will be served by having the said matter tried in Benson county, North Dakota." Wirtz also submitted an affidavit made by the principal defendant Weimer to the effect that there is no issue, either of law or fact, pending between the plaintiff and said defendant Weimer; that no issue has been joined on the disclosure of the Fillmore Equity Elev. Co., garnishee, that said Weimer was a tenant of said Wirtz, and that said Wirtz made advances to him, as stated in the answer and counterclaim. The affidavit further corroborated the statements made by Wirtz as to the location of the premises on which the grain in suit was grown, the residence of Wirtz and Weimer, and that the only issues for trial and determination are issues between the plaintiff and Wirtz. The affidavit further stated that "so far as the affiant knows or is aware all of the witnesses by whom proof of the matters in issue herein will be made are residents of Benson county, North Dakota."

The trial court entered an order denying a change of venue, and directing that the issues in the action be tried in the county court of Cass County. It is from this order that Wirtz has appealed.

As regards an action for the recovery of money only, our laws provide that, "subject to the power of the court to change the place of trial as provided by statute, 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 . . . ." But our laws (Comp. Laws 1913 § 7418) further provide that "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 by consent of the parties, or by order of the court . . . The court may change the place of trial in the following cases: 1. When the county designated for that purpose in the complaint is not the proper county. 2. When there is reason to believe that an impartial trial cannot be had therein. 3. When the convenience of witnesses and the ends of justice would be promoted by the change." These provisions were embodied in the Code of Civil Procedure of the Territory of Dakota of 1877 and have remained the law in this jurisdiction ever since. Code Civ. Proc. 1877, §§ 92-95. It is upon these provisions that the appellant Wirtz relies. Both parties seem to assume that these provisions are as much applicable to a garnishment action as to the principal action, and the arguments on the part of both appellant and respondent are concerned primarily with whether the appellant has brought himself within, and is entitled to invoke, them. These provisions were enacted long before garnishment actions were known in our jurisprudence, and, as we construe our laws, they are not wholly applicable in garnishment actions. While it is true that under our laws the proceedings against a garnishee are deemed an action (Comp. Laws 1913, § 7581; Park v. Nordale, 41 N.D. 351, 170 N.W. 555), it is equally true that a garnishment action instituted in aid of a pending suit is auxiliary and ancillary to such principal suit (Rood, Garnishment, §§ 2, 326), and is denominated by our statute a provisional remedy. Comp. Laws 1913, § 7487. The very section which provides that "the proceedings against a garnishee shall be deemed an action by the plaintiff...

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