York v. North Central Gas Co., s. 2449 and 2450

• Decision Date: 20 November 1951
• Docket Number: Nos. 2449 and 2450,s. 2449 and 2450
• Citation: 69 Wyo. 98,237 P.2d 845
• Parties: YORK et al. v. NORTH CENTRAL GAS CO. POLLARD et al. v. NORTH CENTRAL GAS CO.
• Court: Wyoming Supreme Court

Page 845

237 P.2d 845

69 Wyo. 98

YORK et al. v. NORTH CENTRAL GAS CO.

POLLARD et al. v. NORTH CENTRAL GAS CO.

Nos. 2449 and 2450.

Supreme Court of Wyoming.

Nov. 20, 1951.

C. O. Brown, T. C. Daniels, Douglas, for appellant.

Edward E. Murane, Casper, for respondent.

KIMBALL, Chief Justice.

Two actions for property damage caused by an explosion in a business building in Douglas, Converse County, were consolidated for trial in the district court, and for hearing of the appeals in this court. Plaintiffs and appellants in one action are Pollard, owner of the building, and an insurance company that has paid Pollard a part of the damages. Plaintiffs and appellants in the other action are the Yorks, husband and wife, owners of the contents of the building which they occupied as tenants engaged in the garage business. Defendant and respondent in both actions is a public utility distributing natural gas to inhabitants of Douglas. There was a jury trial resulting in general verdicts for defendant, followed by judgments on the verdicts. The questions raised may be discussed as though we were considering one appeal. There is no difference that need be noticed in the pleadings, motions, orders, judgments or specifications of error in the two cases.

Plaintiffs contend that the trial judge erred in refusing to hold that they had the right to have defendant adjudged in default under a provision of the statute in regard to the procedure on applications for change of venue. The statute, § 3-1904, C.S.1945, provides that the party applying for a change must pay the cost thereof within ten days after the order directing the change is made, and must also, within that time, give a bond to the effect that he will pay all costs that may be adjudged against him in such case, and that unless these conditions are met, the application shall be deemed abandoned. This has been the law since the Territorial act of 1877. Laws of 1877, p. 25 § 2. In 1879 the Territorial Legislature inserted an amendment which is still in the law and is the basis of the contention we are now considering. This part of the statute will be referred to below as the act of 1879. It provides that 'if the abandonment is by the plaintiff, the cause shall be considered discontinued and the costs taxed against said plaintiff and judgment therefor rendered. And if the abandonment is by the defendant, he shall be adjudged in default, and whatever pleadings he may have on file disregarded, and the plaintiff may prove his case as in other defaults.' Laws of 1879, ch. 85, now a part of § 3-1904, C.S.1945, supra.

After the cases were at issue and plaintiffs had made demands for jury trial, defendant filed motions and affidavits for change of venue from Converse County on the ground of local prejudice. The motions were granted September 19, 1947, by orders changing the venue to Natrona County, and fixing the amount of bonds to be given by defendant as security for costs. Defendant did not pay the costs of the change or file the bonds until October 8, 1947, nine days too late. Plaintiffs then filed motions alleging abandonment of the change of venue, and applying for an order adjudging defendant in default and plaintiffs entitled to prove their case as in other defaults, as provided by the act of 1879. The trial judge, ruling on the motions, held that the change of venue had been abandoned, and ordered the cases retained for trial in Converse County. It was further ordered that the part of the motions 'seeking to have the defendant declared to be in default and plaintiffs permitted to prove their case as on default be denied.'

Plaintiffs, in asserting their right to have defendant 'adjudged in default,' have not charged defendant with bad faith either in applying for, or in failing to perfect, the change of venue. From an affidavit of defendant's attorney it appeared without contradiction that the failure to pay the costs and file the bonds in time was not wilful or intentional, but due, as he says, to 'oversight, mistake and inadvertance on his part,' under circumstances that we need not set forth.

Plaintiffs rely on the mandatory language of the act of 1879, which, they argue, is too plain to require interpretation, and leaves nothing to the discretion of the court. The defendant 'shall' be adjudged in default as the penalty for having abandoned his application for change of venue.

We think the word 'shall' as here used cannot reasonably be given its ordinarily imperative meaning. In Lambert v. Place, 53 Wyo. 241, 248, 80 P.2d 425, 428, we quoted from Becker v. Lebanon & M. St. Ry. Co., 188 Pa. 484, 41 A. 612: 'The word 'shall,' when used by the legislature to a court, is usually a grant of authority, and means 'may'; and, even if it be intended to be mandatory, it must be subject to the necessary limitation that a proper case has been made out for the exercise of the power.' See, also, Horack's Sutherland on Statutory Construction, §§ 5810, 5823. At § 5810, the author says: 'There is one principle which stands out foremost among the cases dealing with statutes pertaining to judicial action, that the legislature cannot control judicial discretion. A statue directing judicial action, although it may be expressed in peremptory terms, will be construed as permissive or directory only, where constitutional principles of separation of power require a free and unrestrained exercise of judicial discretion.'

The act of 1879 is without precedent that we can discover in any other provision of our code, or the statutes of other states. Plaintiffs cite cases giving a mandatory meaning to statutes which provide for dismissal (without prejudice, we assume) of an action commenced in a wrong county unless the plaintiff complies strictly with the conditions necessary to lodge the action in the proper county. See State ex rel. Havner v. Associated Packing Co., 216 Iowa 1053, 250 N.W. 130; Davis v. Superior Court, 184 Cal. 691, 195 P. 390. We think such cases are not in point on the question we are considering.

This court has had occasion to review a ruling on a motion based on the act of 1879 in only one case, Barkwell v. Chatterton, 4 Wyo. 307, 33 P. 940, decided in 1893. In that case plaintiff's application for change of venue which had been granted, was abandoned by her failure to file the bond. Defendant on that ground moved to dismiss the action under the act of 1879, then a part of § 3401, R.S.1887, and plaintiff moved to dismiss without prejudice. See § 2661, R.S.1887, now § 3-3505, C.S.1945, providing among other things, that an action may be dismissed without prejudice by the plaintiff before final submission of the cause. Plaintiff's motion was denied; defendant's sustained. Plaintiff evidently fearing that the dismissal under the act of 1879 wiped out her right of action, brought the case to this court on error contending, 4 Wyo. 308, 33 P. 940, among other things, that the act of 1879 was an assumption of judicial power by the legislature; had the effect of depriving her of property without due process of law, and that her motion to dismiss without prejudice should have been granted under § 2661, supra.

The error proceeding in this court was disposed of by deciding that the dismissal of the action under the act of 1879 was without prejudice, which, the court said 'removes the only matter of substantial interest * * * in this case.' The plaintiff was 'practically in the same position as if her own motion had been sustained.' 4 Wyo. 312, 33 P. 941. There is no reason to doubt the correctness of that decision.

There would be a curious inequality in penalties imposed under the act if, when invoked against a plaintiff, he suffers only a dismissal without prejudice; and, when invoked against a defendant, he loses the right to be heard on the issues raised by his answer. See Campbell v. Justices of Superior Court, 187 Mass. 509, 73 N.E. 659, 69 L.R.A. 311; O'Neill v. Thomas Day Co., 152 Cal. 357, 362, 92 P. 856, 859; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215, as to the difference in the situations of a plaintiff and a defendant as affecting the court's power to deny a hearing on the merits.

In Barkwell v. Chatterton, supra, the court took occasion to comment on a case in which the act of 1879 had been invoked by a plaintiff against a defendant, as in the case at bar. We quote from 4 Wyo. 312, 33 P. 941: 'It was stated in argument, and is generally known to the profession, that a former justice of the supreme court of Wyoming territory refused, when sitting as judge of a district court, to disregard the pleadings of a defendant who was in default by abandoning an application for change of venue under this statute. This was, in effect, setting aside the default which the party had incurred, but which had not been formally declared by the court. There is no doubt that it is within the discretion of a trial court to set aside a default, either on sufficient showing by the party in default, or upon matter within the knowledge of the court as occurring in the progress of the cause. If a trial court abuse such discretion, there is, no doubt, a remedy for such abuse.'

The foregoing comment evidently was intended as an approval by this court of the territorial decision. If it was not called for by the issues before the court in the Barkwell case and therefore obiter dictum, as plaintiffs say, we may nevertheless accept it as persuasive insofar as it accords with our view that the statute in question should not be given the mandatory meaning contended for by plaintiffs in the case at bar. An obiter dictum, though not binding under the principle of stare decisis, may be followed if it leads in the right direction.

It was stated in the Barkwell case that the act of 1879 'was evidently aimed to correct the notorious abuses sometimes observed of applications for change of venue made on false grounds, merely for the purpose of delay.' We cannot hold that ...