Weiss By and Through Weiss v. State

• Decision Date: 16 January 1986
• Docket Number: No. 85-387,85-387
• Citation: 219 Mont. 447,43 St.Rep. 82,712 P.2d 1315
• Parties: Larry J. WEISS, an incompetent person, By and Through his duly appointed conservator, Deborah A. WEISS; Jessica I. Weiss and Kristie L. Weiss, minors, by and through their mother and natural parent Deborah A. Weiss; and Deborah A. Weiss, individually, Plaintiffs and Respondents, v. The STATE of Montana; the Montana Department of Highways; Glacier County; and Bill Big Spring, Fred R. Johnson, and Don Koepke, in their official capacity as Glacier County Commissioners; and John Does 1--10, Defendants and Appellants.
• Court: Montana Supreme Court

Page 1315

712 P.2d 1315

219 Mont. 447

Larry J. WEISS, an incompetent person, By and Through his

duly appointed conservator, Deborah A. WEISS; Jessica I.

Weiss and Kristie L. Weiss, minors, by and through their

mother and natural parent Deborah A. Weiss; and Deborah A.

Weiss, individually, Plaintiffs and Respondents, v. The STATE of Montana; the Montana Department of Highways;

Glacier County; and Bill Big Spring, Fred R. Johnson, and

Don Koepke, in their official capacity as Glacier County

Commissioners; and John Does 1--10, Defendants and Appellants.

No. 85-387.

Supreme Court of Montana.

Submitted on Briefs Oct. 31, 1985.

Decided Jan. 16, 1986.

Jardine, Stephenson, Blewett & Weaver, William D. Jacobson, Great Falls, Kirwan & Barrett, Steve Barrett, Bozeman, for defendants and appellants.

Goetz, Madden & Dunn, William Madden, Bozeman, Regnier, Lewis, Boland & Roberts, James M. Regnier, Great Falls, for plaintiffs and respondents.

MORRISON, Justice.

Defendants Glacier County and Glacier County Commissioners appeal the June 12, 1985, order of the Eighteenth Judicial District Court denying defendants' motion for change of venue. We affirm.

On December 12, 1981, plaintiff Larry Weiss was severely injured in a one car roll-over accident on Reagan Road in Glacier County, Montana, and rendered mentally incompetent. A complaint was filed by Deborah Weiss, Larry's wife, alleging negligence in the design, construction and maintenance of the road. The named defendants were the State of Montana, the Montana Department of Highways, Glacier County and its county commissioners in their official capacity, and other unknown defendants potentially liable to plaintiffs.

The complaint was filed on December 11, 1984, in Gallatin County, the plaintiffs' place of residence. On December 31, 1984, defendants Glacier County and Glacier County Commissioners filed a motion for change of venue from Gallatin County to Glacier County, asserting Glacier County was the proper venue because the alleged tort occurred there and § 25-2-106, MCA (1983), requires an action against a county or its commissioners to be brought in such county. The district judge denied the motion, reasoning that venue was proper as to the State defendants therefore venue was proper as to all defendants.

On appeal, the sole issue is whether the District Court erred in ruling that Glacier County and its commissioners could be sued in Gallatin County.

Plaintiffs assert that the 1985 amendments to the venue provisions of the Montana Code, effective October 1, 1985, apply to this appeal. We agree.

Section 1-2-109, MCA, provides: "No law contained in any of the code or other statutes of Montana is retroactive unless expressly so declared." However, a law is not deemed retroactive unless it takes away vested rights acquired under existing laws, or creates new duties or attaches a new disability in respect to transactions already past. Butte & Superior Mining Co. v. McIntyre (1924), 71 Mont. 254, 263, 229 P. 730, 733. This Court has previously held that newly-amended statutes which relate only to procedural matters and do not affect substantive rights of the parties do not fall within the scope of § 1-2-109, MCA. See e.g., Castles v. State (1980), 187 Mont. 356, 609 P.2d 1223; State ex rel. Johnson v. District Court (1966), 148 Mont. 22, 417 P.2d 109. A statutory change in venue provisions is wholly procedural and may be applied to pending cases. Denver & Rio Grande Western Railroad Co. v. Brotherhood of Railroad Trainmen (1967), 387 U.S. 556, 87 S.Ct. 1746, 18 L.Ed.2d 954. We find that the 1985 amendments to the venue provisions of the Montana Code are applicable to this case.

Three sections of the venue provisions in the Montana Code are implicated by the present case:

25-2-117. Multiple defendants. If there are two or more defendants in an action, a county that is a proper place of trial for any defendant is proper for all defendants, subject to the power of the court to order separate trials under Rule 42(b) of the Montana Rules of Civil Procedure. If an action with two or more defendants is brought in a county that is not a proper place of trial for any of the defendants, any defendant may make a motion for change of place of trial to any county which is a proper place of trial.

25-2-125. Against public officers or their agents. The proper place of trial for an action against a public officer or person specially appointed to execute his duties for an act done by him in virtue of his office or against a person who, by his command or in his aid, does anything touching the duties of such officer is the county where the cause or some part thereof arose.

25-2-126. Against state, county, and political subdivision. (1) The proper place of trial for an action against the state is in the county in which the claim arose or in Lewis and Clark County. In an action brought by a resident of the state, the county of his residence is also a proper place of trial.

(2) The proper place of trial for an action against a county is that county unless such action is brought by a county, in which case any county not a party thereto is also a proper place of trial.

(3) The...