Wolfe v. Montgomery

• Decision Date: 31 December 1918
• Docket Number: No. 4425.,4425.
• Citation: 170 N.W. 158,41 S.D. 267
• Parties: WOLFE v. MONTGOMERY et al.
• Court: South Dakota Supreme Court

41 S.D. 267

170 N.W. 158

WOLFE

v.MONTGOMERY et al.

No. 4425.

Supreme Court of South Dakota.

Dec. 31, 1918.

Appeal from Circuit Court, Minnehaha County; Joseph W. Jones, Judge.

Action by Francis A. Wolfe against Mabel B. Montgomery, impleaded with the Security Trust & Savings Bank. From an order denying the motion of the first-named defendant for a change of venue, she appeals. Affirmed.R. R. Hazen, of Winner, and Davis, Lyon & Bradford, of Sioux Falls, for appellant.

Boyce, Warren & Fairbank, of Sioux Falls, for respondent.

WHITING, P. J.

Plaintiff gave his promissory note to defendant Montgomery, a resident of Tripp county, who sent it to defendant bank for collection. Such bank was located in Minnehaha county. Plaintiff brought this action in Minnehaha county, and, while praying for the possession of the note or, in case possession could not be had, for alternative relief in money judgment for face value of note, the allegations of his complaint set forth facts which would have entitled him to equitable relief by way of cancellation of the note. The defendant Montgomery moved that the venue of said action be changed to Tripp county, and, in support of such motion, submitted her affidavit showing her residence; alleging that this action, while termed one in replevin, was in truth “simply an action in equity, having for its purpose the cancellation of the promissory note,” and that she was entitled to have the place of trial thereof changed to the county of her residence. Plaintiff submitted an answering affidavit setting forth that the real purpose of such action was to gain possession of the note, and was brought in Minnehaha county because of the fact that the physical possession of such note was in the defendant bank in said county. This appeal is from an order denying a change of venue.

[1] Appellant makes no claim that a promissory note is not a proper subject of replevin. Section 99, C. C. P., provides:

“Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial in the cases provided by statute: ***

4. For the recovery of personal property distrained for any cause.”

Appellant contends that the above section has no application to the facts of this case, as it does not appear by the complaint that this personal property was “distrained.” She says, “We are unable to discover any connection between the situation disclosed in this case and the common-law remedy of distress;” and she seems to argue that, because it does not appear by the complaint that defendant took this note as a distress, it does not appear that the above section has any application. It is certainly true that the action of replevin “originally lay for the purpose of recovering chattels taken as a distress.” Cobbey on Replevin, § 1. Is it in this narrow sense that the word “distrained” is used in said section 99? No one will dispute but that the action of replevin...