City of International Falls v. American Traction Co.

195 N.W. 891, 157 Minn. 207, 1923 Minn. LEXIS 870

• Court: Supreme Court of Minnesota
• Decided: November 23, 1923
• Docket: No. 23,896
• Status: Published

Opinion

Pee O'ueiam.

Original proceeding in mandamus to compel the remanding of an action wherein relator, a municipal corporation, was plaintiff and certain residents of Hennepin county were defendants. The case was commenced in Koochiching county. Within the time and in the manner provided by statute, defendants had the venue changed to Hennepin county. Certain proceedings were had there,' plaintiff, the relator here, participating. The principal step was taken by relator itself in that it noticed the case for trial in Hennepin county.

Thereafter it moved to have the case remanded to Koochiching county. That motion was denied and now the relator seeks an order from this court requiring the district court of Hennepin county to remand.

It is argued for relator that an action in which a municipality is a party is local to the county wherein it is situated; that it makes no difference whether .the municipal corporation is plaintiff or defendant, and that in all such cases there should be applied the rule of State ex rel. Johnson v. District Court, 120 Minn. 458, 139 N. W. 947, Ann. Cas. 1914C, 106.

That is a point not before us for decision because, even if the relator’s position in that respect is well taken, it has waived its right to have the case remanded. 40 Cyc. 181, Dunnell, Minn. Practice, § 292. Delasca v. Grimes, 144 Minn. 67, 174 N. W. 523; Wade v. National Bank of Commerce of Mankato, 144 Minn. 187, 174 N. W. 889. After relator’s voluntary participation in the Hennepin county proceedings, particularly its service of tbe notice of trial, it was too late for it to assert that the case was not properly there.

Order to show cause discharged.