O'Hanion v. Great Northern Railway Co.

245 P. 518, 76 Mont. 128, 1926 Mont. LEXIS 73

• Court: Montana Supreme Court
• Decided: April 5, 1926
• Docket: No. 5,889.
• Status: Published

Opinion

MB. CHIEF JUSTICE CALLAWAY

delivered the opinion of the court.

The plaintiff, within the limitations of the statutes, may select any county he chooses for the trial of his action and to this choice the defendant must conform unless he seasonably moves for a change of place of trial. The word “moves” as here employed comprehends the things necessary to be done by the litigant to obtain an order of court directing the change.

A defendant may waive his right to the privilege of the change by omitting to demand the right or by failing to observe the statutory requirements. (Secs. 9097, 9098, B. C. 1921; State ex rel. Williams v. District Court, 56 Mont. 478, 185 Pac. 458; Danielson v. Danielson, 62 Mont. 83, 203 Pac. 506; State ex rel. Davis v. District Court, 72 Mont. 56, 231 Pac. 395.)

As this action sounds in tort it is triable properly in the county where the tort was committed. (Dryer v. Director-General of Railroads, 66 Mont. 298, 213 Pac. 210; State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 Pac. 1030.) Lewis and Clark is not that county but nevertheless the action may be tried there unless the defendant has availed itself of the statutory right to have the venue changed to- the proper county.

The plaintiff contends that the defendant has waived its right to the change by failing to pursue the statutory requirements. His argument is based upon two grounds: (1) the defendant did not file with its written demand a “motion” for the change; (2) tbe original affidavit was insufficient and the court erred in permitting another to be filed. As we shall demonstrate presently, neither of these grounds is tenable. The first not only is in the very teeth of the Davis Case, supra, but has its insecure basis upon a misconception of the meaning of the word “motion” as variously used in certain of our opinions to which we shall call attention presently. Preliminary to that it may be of advantage to examine the applicable statutes again.

“If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein unless the defendant at the time he appears, answers, or demurs, files an affidavit of merits and demands in writing, that the trial be had in the proper county. ’ ’ (See. 9097, Eev. Codes 1921.) This section is not operative by itself; it is operative only in connection with the next section, 9098, which provides that the court or judge must, on motion, change the place of trial when the county designated in the complaint is not the proper county.

"While section 9097 furnishes the basis for the motion it does not supply the place of the motion. The filing of the affidavit and demand do not operate ipso facto to change the place of trial. The court can act only upon motion. (State ex rel. Gnose v. District Court, 30 Mont. 188, 75 Pac. 1109.) It “cannot change the place of trial sua sponte.” (Danielson Case, supra; Davis Case, supra.) The litigant seeking a change of place of trial under these sections must, first, file an affidavit of merits and a demand in writing; second, apply to the court for an order changing the place of trial. These movements, mentioned as first and second above, are distinct and separate; also indispensable and imperative, in the absence of an agreement of the parties. (See. 9102, Rev. Codes, 1921.)

California and Nevada have statutory provisions similar to our own and such seems to have been the consistent holding of the appellate court? of those states. In fact we took section 9097 and that portion of 9098 referred to above from California.

Now what is a motion? It must be admitted that the word probably is used oftener in its general than in its technical sense. One says be intends to make a motion for a continuance, or for a change of venue, or for a new trial. He means that he intends to serve and file all the requisite papers and to go through the entire process necessary to procure the order he seeks. Technically a motion is an application for an order; so says the' statute. (Sec. 9772, Rev. Codes 1921.) “A motion is properly an application for a rule or order, made viva voce to a court or judge,” said Mr. Justice Temple in People v. Ah Sam, 41 Cal. 650. “The grounds of the motion are often required to be stated in writing, and filed. In practice, the form of the application itself is often reduced to writing and filed. But making out and filing the application itself is not to make the motion. If nothing more .were done, it would not be error in the court to entirely ignore the proceeding. The attention of the court must be called to it. The court must be moved to grant the order.” This language was quoted wRh approval by this court in Wallace v. Lewis, 9 Mont. 399, 24 Pac. 22, and has been followed consistently by the supreme court of California. (See 18 Cal. Jur. 649, 650.) Wallace v. Lewis has been followed in Peters v. Vawter, 10 Mont. 201, 25 Pac. 438, and State ex rel. Davis v. District Court, supra.

Notice of the motion is required. The written motion, if one be filed, is not notice of the time and place when and where the movant will make application for the order. If notice were not required the movant immediately after filing and serving his demand, affidavit of merits, and, let us say, written “motion,” might immediately apply to the court for the order sought and obtain the same in the absence of his adversary, the adversary having no opportunity to be heard.

The matter, however, is not in doubt. In Bohn v. Bohn, 164 Cal. 532, 129 Pac. 981, after a thorough consideration of the statutes identical with ours the supreme court held the motion for a change of place of trial must be made upon notice to the plaintiff. (And see Lundy v. Lettunich, 50 Cal. App. 451, 195 Pac. 451.) But one is not required to notify his adversary of the filing of an affidavit disqualifying a judge. (State ex rel. Jenkins v. District Court, 32 Mont. 595, 81 Pac. 351; State ex rel. Lehman v. District Court, 49 Mont. 247, 141 Pac. 659.) The notice required is the one contemplated by section 1010 of the California Code of Civil Procedure which we borrowed— section 9778, E. C. 1921.

When must the notice of motion be given ? The precise point was answered in Lundy v. Lettunich, supra, as follows: “So far as the court is informed there is no decision holding that the notice of motion must accompany the affidavit and demand. They are entirely separate matters. Section 396 requires only the demand and affidavit to be served and filed with the demurrer or answer. The motion could not be made at that time unless notice under section 1003 were waived. The proceeding, it is true, must-be prosecuted with diligence. (Cook v. Pendergast, 61 Cal. 79.) The motion should be made at the earliest opportunity. (Parks v. Frear, 9 Cal. 642; Jones v. Frost, 28 Cal. 246.) If it is made afterward the applicant must explain any seeming lack of diligence on his part. (Smith v. Pelton Water Wheel Co., 151 Cal. 401, 90 Pac. 932, 1135.)”

As pointed out in the foregoing quotation, the motion cannot be made at the time the demand and affidavit are filed unless notice of the application is waived by the adversary, something which in ordinary practice is not within contemplation. The test is not what may be accomplished if the adversary consents but what one must do if the adversary does not consent. Without the adversary’s consent it is impossible to present the motion at the time the demand for the change and affidavits in support of the demand are filed. This renders inevitable the conclusion that as a practical proposition the motion cannot be made simultaneously with the affidavit and demand. In State ex rel. Davis v. District Court, supra, we held that the notice of motion need not be filed simultaneously with the affidavit and demand though of course it must be served and filed within a reasonable time thereafter; the movant must proceed with diligence. In view of the foregoing authorities that holding is unimpeachable. But it is urged that in so doing we overlooked what was said in State ex rel. Interstate Lumber Co. v. District Court, supra, State ex rel. Williams v. District Court, supra, and Danielson v. Danielson, supra. In neither was the question here presented involved. .

In the Interstate Case there was not any question as to the order in which the moving papers were filed, nor as to their sufficiency. The opinion does not show that the defendant filed any demand nor that a written motion was filed. From the papers now in the files we are not able to ascertain just what the moving papers were. In defendant’s brief in that case it is said that when the defendant demurred he filed a written demand for a change of venue and affidavits in support thereof, no mention being made of a motion. The language apparently relied upon here by the defendant is: “The contention is made by counsel for the defendant court that a defendant in the particular action has the right to have his motion for a change of place of trial determined upon the condition in which the action is at the time he first appears therein. It is true that the motion, to be available on the ground that the action has not been commenced in the proper county, must be made by the defendant upon his first appearance. (Secs. 6505, Rev. Codes.)” From the foregoing it would seem clear that by the word “motion” the court simply referred to the moving papers mentioned in the statute referred to. The same may be said of the Williams Case. There the defendant appeared by general demurrer on July 19. Two days later the defendant filed notice of motion, demand and affidavits in support of an application for change of place of trial. The court said: ‘1 The statute requiring the motion to be made at the time of appearance and answer or demurrer is analogous to a statute of limitations, and where, by reason of fault of the agency or means selected for transmitting the papers, there is a delay beyond statutory time for the filing thereof, the privilege is lost.”

In the Danielson Case the defendant on September 18 made appearance by filing an answer with which he filed a demand in writing that the place of trial be changed. Therewith he did not file an affidavit of merits. The change was urged upon the ground that the defendant was a resident of another county than that in which the action was commenced. The first evidence of defendant’s residence was contained in affidavits filed with the, notice of motion, which was nine days after defendant’s appearance. The court said: “When section 6505 is read in connection with section 6506 it becomes apparent that the evidence of defendant’s residence and the motion for change of venue must be presented at the time of first appearance when the answer or demurrer is filed (State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 Pac. 1030; Cook v. Pendergast, 61 Cal. 72; Wadleigh v. Phelps, 147 Cal. 541, 82 Pac. 200; Union Lumber Co. v. Metropolis Constr. Co., 13 Cal. App. 584, 110 Pac. 329), and, if not presented at that time, the right to a change of venue is waived (State ex rel. Williams v. District Court, 56 Mont. 478, 185 Pac. 458.) ” By the foregoing language the court did not intend to say that a notice of motion or written motion must needs be filed when the fundamental moving papers, written demand and affidavit of merits, are filed. The movant had not complied with the requirements of the statute; no affidavit of merits had been filed. While the statutes mentioned are complementary the movant must invoke the joint operation of the two to bring about the desired result.

The authorities cited in the foregoing quotation confirm our present observation: The Interstate Case is discussed above; in Cook v. Pendergast, supra, the court said, among other things, that section 396 of the Code of Civil Procedure of California “has changed the rule, if it ever was a rule, which required the motion, or notice of motion, in all eases to precede or accompany the answer or demurrer.” Wadleigh v. Phelps, supra, says: “Where a party claims the right to a change of place of trial upon the ground that the county in which the action is begun is not the county of his residence and fails to make the demand for a change until after he has appeared and demurred, he thereby waives his right. Such demand and application must be made at the time of his first appearance, either by answer or demurrer.” And in Union Lumber Co. v. Metropolis Construction Co., supra, the court said: “ ‘Section 396 of the Code of Civil Procedure requires the party desiring to move for the change of the place of trial to file an affidavit of merits and demand in writing that the place of trial be had in the proper county, at the time he answers or demurs.’ If his motion or demand is made after demurrer filed and overruled, he fails to comply with the statute and the demand should be denied.”

Nevertheless, it is commendable practice to file with the demand and affidavit a notice of motion stating the grounds upon which the motion will be made, and also a written motion. Diligence being required the motion should be brought on for hearing as soon as the circumstances reasonably will permit; the movant must not be guilty of laches. (State ex rel. Davis v. District Court, supra.)

As will be remembered, the complaint alleged the accident to plaintiff occurred at Gravel Pit on defendant’s main line of railroad between Seattle and Minneapolis, but within the state of Montana. The defendant demanded that the trial of the action “be had in the county of Flathead, state of Montana, for the reason that Lewis and Clark county is not the' proper county for the trial of said cause, * * * /’damages being demanded for personal injuries “alleged to have been sustained by plaintiff while he was in the service of defendant as a section laborer in Flathead county, Montana, * * * The sufficiency of the affidavit of merits is challenged only upon the ground that the defendant did not state therein that the acts constituting the tort upon which the action is based occurred in Flathead county. Otherwise the affidavit seems to come within the rules laid down in State ex rel. Stephens v. District Court, 43 Mont. 571, Ann. Cas. 1912C, 343, 118 Pac. 268. The objection lodged against this affidavit is technical. The plaintiff knew where the accident occurred, stated the time and place in his complaint, and from that document it is clear that the accident did not occur in Lewis and Clark county. The court will take judicial notice that the main line of the Great Northern Railway does not run through Lewis and Clark county but does run through Flathead county. (Jones, Commentaries on Evidence, sec. 127c; Elliott on Railroads' Commentaries on Evidence, sec. 127c; Elliott on Railroads, 3d ed., sec. 2698.) But where is Gravel Pit?

Conceding for the sake of argument that it was necessary for the defendant to set forth in the affidavit of merits that Gravel Pit is in Flathead county and that the original affidavit was insufficient because of the omission of that allegation, was it error for the court to permit the supplemental affidavit to be filed? It must be conceded that the second affidavit was of a supplemental character. We have no doubt that the court properly might have permitted the original affidavit to be amended, as was done ■ in State ex rel. Stephens v. District Court, supra. Statutes relating to changes of venue, like others of a procedural nature, should receive a liberal construction, — indeed, all provisions under the Codes are to be liberally construed with a view to effect their object and to promote justice. (Sec. 4, Rev. Codes 1921; Woodward v. Melton, 58 Mont. 594, 194 Pac. 154.) So too “the court must in every stage of an action disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties.” (Sec. 9121, Rev. Codes, 1921.)

That the court in the exercise of a sound discretion may allow an affidavit of merits to be amended has been recognized by the courts of California on many occasions. (Palmer v. Barclay, 92 Cal. App. 199, 28 Pac. 226; Pittman v. Carstenbrook, 11 Cal. App. 224, 104 Pac. 699; Lundy v. Lettunich, supra; Jaques v. Owens, 18 Cal. App. 114; 122 Pac. 430.) In Palmer v. Barclay, supra, it is said that the “trial court has power in the exercise of its discretion, to allow an insufficient affidavit of merits which has been filed in due time upon a' motion to change the place of trial of an action to be amended after the time for- filing the original affidavit has expired; and the filing of the amended affidavit relates back to the time of the filing of the original affidavit.” This language was quoted and approved in Jaques v. Owens, supra.

The defendant, as a matter of right, is entitled to have this action tried in Flathead county unless it has waived that right by failing to demand a change of venue in accordance with the statutes. If in view of the failure of the complaint to state the county in which Gravel Pit is, it were to be held that it was essential to set forth in the affidavit of merits that Gravel Pit is in Flathead county, that fact could have been supplied by an amendment to the affidavit. Taking into consideration what this record discloses, can it be said that the court erred in permitting the supplemental affidavit to be filed? Must it be held that while the information could have been supplied by an amended, it could not be by a supplemental, affidavit? The questions answers itself.

The plaintiff did not offer to file a counter-affidavit and did not attempt to show in any way that as a matter of fact the accident did not occur in Flathead county. There is no showing, nor even an intimation, that any injury has been done to the plaintiff through the court’s action.

We think the court exercised its discretion with wisdom and the order appealed from is affirmed.

Affirmed.

'Associate Justices Holloway, Galen, Stark and Matthews concur.