Shields v. Shields

139 P.2d 528, 115 Mont. 146, 1943 Mont. LEXIS 54

• Court: Montana Supreme Court
• Decided: July 9, 1943
• Docket: No. 8379.
• Status: Published

Opinions

The sole ground of defendant's motion of change of place of trial was predicated upon the hypothesis that she is a resident of Madison county, Montana, and by that fact alone is entitled to have the action tried in the county in which she resides. The position of the plaintiff is, that defendant is not entitled to a change of place of trial for the reason that the action has been commenced in Silver Bow county, that is the county in which plaintiff resides, and is the county in which the defendant was found and served with summons. We assert that section 9096, Revised Codes, is controlling. The decision of the trial court would emasculate the section by removing therefrom the phrase "or where the plaintiff resides, and the defendants, or any of them, may be found." The legislature, in enacting this statute, certainly had in mind just such a situation as exists here when that law was enacted. Our legislature in adopting the section from California (sec. 395, Code Civ. Procedure) saw fit to insert the phrase which by plaintiff is asserted to be controlling in the present case. It had purpose in doing this, and we assert that the purpose in making that alteration was to give a plaintiff the right to bring an action in the county of his residence, provided the defendant could be served with summons in that county.

So far as we have been able to find, this point has never been decided in Montana. It would seem hardly necessary that judicial interpretation be given. The language is plain, simple and concise. The various provisions of section 9096 are separate and distinct, and yet related one to the other. The provisions are in the disjunctive and alternative. No one part of the section is accented in any respect. Here each fact enumerated in the phrase of this section relied upon by plaintiff exists. The action may be tried as provided in such phrase.

We have found a number of Montana decisions construing section 9096. The cases hereinafter cited are illustrative. Each holds that the defendant has a right to a change of place of trial from the county in which the plaintiff resides to that in which the defendant resides, however, in none of these cases was the defendant found and served with summons in the county in which the plaintiff resided. In each case, summons was served upon the defendant in the county in which the defendant resided, and that fact was mentioned particularly by the court in its opinion in each case and appears to have been determinative of the right of the defendant to a change of place of trial. In other words, the court seemed to recognize in each of these cases that if the defendant had been served in the county of plaintiff's residence, the right to a change of place of trial to the county of defendant's residence would not have existed. (SeeBond v. Hurd, 31 Mont. 314-317, 78 P. 597; McDonald v.Collins, 19 Mont. 372, 48 P. 549.)

In the case of State ex rel. Mackey v. District Court,40 Mont. 359, 106 P. 1098, a case in which jurisdiction was acquired in a transitory action by attachment and publication, this court has recognized the rule stated in relation to transitory actions, such as the present action, and has stated generally that such actions may be tried wherever personal service can be made on the defendant. This is the rule, we take it, in the absence of statute to the contrary, and our statute is not to the contrary but is strictly in accordance with this rule, and the disputed phrase of section 9096, gives the plaintiff the right to maintain the action in the county of his residence, if the defendant can be found in such county. (See, also, LamarAlfalfa Milling Co. v. Bishop, 80 Colo. 369, 250 P. 689;State ex rel. Wilson v. Burney Cir. Judge, 195 Mo. App. 326,186 S.W. 23; City of Kirkwood ex rel. McMahan v. Handlan,182 Mo. App. 626, 168 S.W. 346; Western Stoneware Co. v. PikeCounty Mineral Springs Co., 172 Mo. App. 686, 155 S.W. 1083.)

From the foregoing, it will be noted that in other states the phrase which has been introduced into our statute, has been given full force and effect. There is no cogent reason why it should not be given equal force with other parts of section 9096 in this state.

Before the lower court, counsel relied very strongly upon the case of McKinney v. Mires, 95 Mont. 191, 26 P.2d 169, but in that case, the point involved here was not under consideration. The gist of that decision is simply that equitable suits for accounting are within the contemplation of section 9096 and governed thereby. The court had no cause to consider or pass upon the question presented here.

In the case of Great Northern Railway Company v. Hatch,98 Mont. 269, 38 P.2d 976, also relied upon by counsel, simply follows and approves the McKinney v. Mires case in holding that the place for trial of equitable actions or suits is to be determined by the provisions of section 9096. Appellant, quoting section 9096, Revised Codes, states that it is controlling in this case, and also controlling as to the right of the plaintiff to have the action tried in the county of his residence. That was the same contention which was raised in the case of Archer v. Archer, supra, 106 Mont. 116,75 P.2d 783, but which contention was there denied. However, in the latter case, it is true that the defendant was served in his own county of residence.

Appellant also quotes section 395 of the California Code of Civil Procedure, identical with our section 9096, except for the inclusion in the Montana section of the phrase: "or where the plaintiff resides, and the defendants, or any of them, may be found." However, the only portion of our section 9096, which is pertinent to this case, is the following language therein contained: "In all other cases the action shall be tried in thecounty in which the defendants, or any of them, may reside atthe commencement of the action, or where the plaintiff resides, and the defendants, or any of them, may be found. The italicized portion has been held by this court to be the principal clause of this code section, in the case of McKinney v. Mires, 95 Mont. 191,26 P.2d 169, wherein it was said: "But in the first or main clause of section 9096, above; i.e., the place of residence of `the defendants, or any of them,' is controlling."

In the absence of a constitutional or statutory provision to the contrary, all equitable actions or suits are properly triable in the county in which the defendants, or any of them, reside. (Great Northern Ry. Co. v. Hatch, 98 Mont. 269,38 P.2d 976.) The general spirit and policy of statute providing that the county in which defendants or some of them reside at commencement of action is proper county for trial of action is to give defendant right of having all personal actions tried in the county of his residence. (Vickerson v. Wehr, 42 Cal.App.2d 678,109 P.2d 743.) In a transitory action, defendant is the favored party with right to have the action brought in the county of his residence. (State ex rel. Nielsen v. SuperiorCourt, 7 Wn.2d 562, 115 P.2d 142.) The section of the Code of Civil Procedure permitting the defendant to have certain actions tried in the county where he resides is "remedial" in nature and should be liberally construed to the end that a defendant may not be unjustly deprived of that right. (Lyons v.Brunswick-Balke-Collender Co., 20 Cal.2d 579,127 P.2d 924.) The right of defendant to have certain actions tried in the county of his residence is an ancient and valuable right which has always been safeguarded by statute and is supported by a long line of judicial decisions. (Id.) The right of a plaintiff to have an action tried in another county than that in which the defendant has his residence is exceptional and if plaintiff would claim such right, he must bring himself within the terms of the exception. (Id.); see, also, 50 C.J. 550, 551, sec. 231.)

As illustrating how the courts generally look upon service of process acquired in the manner it was accomplished in this case, apparently for the designed purpose of holding the venue in Silver Bow county, we desire to call the following citations to the court's attention: 50 C.J. 555; State ex rel Ellan v.District Court, 97 Mont. 160, 33 P.2d 526; Bowes v.Superior Court, (Cal.) 124 P.2d 667; Underwood v.Fosha, 73 Kan. 408, 85 P. 564. Plaintiff appeals from an order granting a change of venue,[1] which is an appealable order. (Sec. 9732, Rev. Codes;Helena Adjustment Co. v. Predivich, 98 Mont. 162,37 P.2d 651.)

The action was filed in Silver Bow county, in which at the time of the parties' separation in 1940 both resided, and in which plaintiff still resides, and in which service was had on defendant. Defendant's demand for change of venue to Madison county was made and granted upon the ground that at the time of service of summons she was a resident of that county. The fact of her residence there is not questioned by plaintiff upon this appeal.

The action was filed on November 25, 1941, but service was not had until April 8, 1942, when defendant was in the city of Butte, in Silver Bow county, at the request of her attorneys in connection with her taking of plaintiff's deposition in another cause pending between them. The record indicates that defendant had been in Silver Bow county at various times since the parties' separation. No contention is made here that the service upon her was improper or questionable, and defendant made no special appearance to question its validity but appeared generally by demurrer and motion for change of venue. Consequently the sole issue here is whether, under section 9096, Revised Codes, which the parties agree is the controlling statute, the order for change of venue was erroneous.

Section 9096, Revised Codes, reads in part as follows: "In all other cases the action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, or where the plaintiff resides, and the defendants, or any of them, may be found; or, if none of the defendants reside in the state, or, if residing in the state, the county in which they so reside be unknown to the plaintiff, the same may be tried in any county which the plaintiff may designate in his complaint * * *."

As noted above, defendant resides within the state and no contention is made that her place of residence was unknown to plaintiff. Therefore the portion of the section applicable is the first part which provides that "the action shall be tried in the county [1] in which the defendants, or any of them, may reside at the commencement of the action, or [2] where the plaintiff resides, and the defendants, or any of them, may be found."

It is clear that under the first provision noted in the last paragraph above, Madison county, where defendant resides, is a proper county for the trial of the action. On the other hand, the second provision seems to provide that Silver Bow county, where plaintiff resides and defendant was found and served, is also a proper county for the trial thereof.

Section 9097, under which the demand for change of venue is[2-4] made, provides for such change only "if the county in which the action is commenced is not the proper county." Therefore if Silver Bow county is the proper county under the second provision, there is no statutory authorization for removing the case to Madison county, even though the latter is admittedly the proper county for trial under the first provision. In short, if both are proper counties, the action must stay where it was filed. (Bergin v. Temple, 111 Mont. 539,111 P.2d 286, 133 A.L.R. 1115.) Consequently the only question is whether the second provision, as well as the first, applies to this case; if so, the order granting the change of venue was erroneous.

Defendant speaks of this action as a transitory one and cites the decisions of certain jurisdictions to the effect that it is the general policy of the law that in transitory actions defendant is the favored party, with a right to have the action brought in the county of his residence. However the general policy of the law differs in various states as determined by the legislatures, and it should be noted that in State ex rel.Mackey v. District Court, 40 Mont. 359, 106 P. 1098, 1101, 135 Am. St. Rep. 622, this court said: "In general transitory actions may be tried wherever personal service can be made on the defendant."

The exact question seems never to have been adjudicated in this state. Defendant relies upon some wording in McKinney v.Mires, 95 Mont. 191, 26 P.2d 169, 172, as follows: "It is purely an equitable suit, and is transitory, and the designation of the proper county is found, not in the provision with respect to actions upon contracts, but in the first or main clause of section 9096, above; i.e., the place of residence of `the defendants, or any of them,' is controlling."

Defendant's argument is that the court's reference to defendant's place of residence and to "the first or main clause of section 9096" indicates that this court regarded the entire remainder of the section as subordinate. But what the court was pointing out was that that section applied rather than the section relating to contract actions, and that the subordinate provision with regard to defendants who resided outside of the state or whose residence within the state was unknown to plaintiff did not apply.

It is fundamental that the language of a decision must be[5] interpreted with reference to the facts of the case, and so considered the language, while not a precedent upon this point, bears out the contention of the plaintiff rather than of the defendant. In that case the defendants were served in the county of their own residence and not in the county of plaintiff's residence, as here. The decision shows that the court had that point in mind, for it mentioned the fact that one ground of motion was "that none of the defendants reside or were servedwith summons in Silver Bow county," and proceeded to say: "Under the facts alleged it is manifest that Silver Bow county is not the proper county for the trial of the `action' under any one of the foregoing designations. * * * It follows that these defendants, residing and served with summons in Gallatincounty, were entitled to have the cause removed to that county on their demand."

Thus it seems clear that if any weight is to be givenMcKinney v. Mires in this regard, it is that the court was cognizant of the provision here in point and of the significance of the fact that the defendants were found and served in the county of their own residence and not in that of plaintiff's residence.

In regard to the question of the "general spirit and policy of[6, 7] the law" which defendant stresses, it must be remembered that it is primarily for the legislature to declare that spirit and policy. "The common law of England, so far as it is not repugnant to or inconsistent with the constitution of the United States, or the constitution or laws of this state, or of the codes, is the rule of decision in all the courts of this state." (Sec. 5672, Rev. Codes.) "The codes establish the law of this state respecting the subjects to which they relate * * *." (Sec. 4, Rev. Codes.)

The legislature having spoken upon this subject, its declaration is conclusive upon the courts and the only question is of the construction of the legislative provision, bearing in mind that the provision must be construed according to the context and approved usage of the language (sec. 15, Rev. Codes), which necessarily includes the accepted grammatical rules. It is apparent that under the rules of grammar each of the expressions [1] and [2] above which are connected by the disjunctive "or," modify or relate to the word "county." It is also a well[8] recognized rule that where two such clauses or phrases are so expressed in the disjunctive they are co-ordinate and either is applicable to any situation to which its terms relate.

Thus Webster's New International Dictionary (2d Ed.) defines the conjunction "or" as "A co-ordinating particle that marks an alternative; as, you may read or write — that is you may do one of the things at your pleasure, but not both. It often connects a series of words or propositions, presenting a choice of either; as, he may study law or medicine, or he may go into trade." Following the accepted definition and rules, it follows that the action may be tried either in the county in which defendant resides or in the county in which plaintiff resides and defendant[9] "may be found." The question then is whether defendant was "found" in Silver Bow county. This court's emphasis upon the place of service in the above quotations in McKinney v.Mires, supra, indicates the assumption that "found" means "found for legal service." The dictionary mentioned above defines "find," of which "found" is the past tense and past participle, as "to come upon by seeking or by effort."

Section 9110, Revised Codes, provides that summons may be served by the sheriff of "the county where the defendant isfound." Section 9112 provides for service on the Secretary of State for a corporation, none of whose qualified officers, agents or employees "can be found within the state, upon whom service of process can be made." Section 9117 provides for service by publication when the defendant resides out of, has departed from, or "cannot, after due diligence, be found" within the state.

It was held in Tiedemann v. Tiedemann, 36 Nev. 494,137 P. 824, 826, that with reference to a venue statute conferring jurisdiction in the court of a county "in which the defendant shall reside or be found", (Rev. Laws sec. 5838), the word "found" is used in contradistinction to the word "reside." The court said: "There is nothing in the language of the statute to indicate that the Legislature in using the word `found' intended to use it in any sense other than as frequently used in statutes relative to the service of process."

Defendant does not argue that the word "found" has any other meaning than the natural one assumed by this court in McKinney v. Mires, supra, and expressly determined by the Nevada court in Tiedemann v. Tiedemann, supra. Defendant does contend,[10] however, that if the statute is construed to confer jurisdiction in accordance with the natural construction of the words used, the result will be to encourage luring the defendant into the county of the plaintiff's residence by fraud or trickery. It has been held that even a service made upon defendant after he has been brought within the county under arrest is not absolutely void, although it may be avoided on timely objection. (Mosier v. Aspinwall, 151 Okla. 97, 1 P.2d 633.) Without reference, however, to any question of waiver by general appearance, it has often been held that service upon a defendant in a county other than that of his residence is not good if his presence there was induced by fraud, trick or device (Bowes v. Superior Court, (Cal.App.), 124 P.2d 667;Oklahoma Industrial Finance Corp v. Wallace, 180 Okla. 363,69 P.2d 362), and that defendant is properly said to be "found" where served only if he is there voluntarily (McNab v.Bennett, 66 Ill. 157) and not by reason of plaintiff's fraud, artifice or trick for the purpose of obtaining service. (Willard v. Zehr, 215 Ill. 148, 74 N.E. 107; McLain v.Parker, 88 Kan. 717, 129 P. 1140.) As noted above, there are no such facts here to bring this case within any of the exceptions.

If the legislature had not meant to permit such alternative venue as the section indicates, it would presumably not have used the words in question. That it used them advisedly is not only to be presumed but is shown affirmatively by the fact that while it had adopted the California statute, it chose to add the words in question, indicating a clear intention to provide an additional situation in which the court of a county would have jurisdiction.

Defendant suggests that we should read into the provision words limiting its application to cases in which defendant does not reside or cannot be found in the state; but that would constitute clear judicial legislation, especially since the situation was already expressly covered by the statute as adopted from California. There would be no justification for finding that the addition of the provision in question was for the purpose of duplicating something already in the statute.

It follows, therefore, that each of the two provisions must be held applicable in any case in which it fits the circumstances, and that where both apply to a given case they are alternative provisions, so that neither county is the wrong one, and the provision for change of venue from the wrong county to the right one does not apply.

The order appealed from is therefore reversed.

ASSOCIATE JUSTICES ERICKSON and ANDERSON concur.