Roundup National Bank v. Department of Revenue ( 1977 )

No. 13688
IN THE SUPREME COURT OF THE STATE OFMINTANA
1977
ROUNDUP NATIONAL BANK,
Plaintiff and Appellant,
DEPARTMENT OF REVENUE et al.,
Defendants and Respondents.
Appeal from: District Court of the First Judicial District,
Honorable Gordon R. Bennett, Judge presiding.
Counsel of Record:
For Appellant:
Towe, Ball & Enright, Billings, Montana
For Respondents:
R. Bruce McGinnis, Helena, Montana
John L. Pratt, Roundup, Montana
Submitted On Briefs.
Submitted: December 2, 1977
Decided: DECl4 1 9 ~
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Filed:
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
This is an appeal from an order entered in the District
Court of Lewis and Clark County, granting respondents' motion
for change of venue.
On May 20, 1976, appellant paid certain taxes under
protest to the county treasurer of Musselshell County. The taxes
were paid pursuant to an audit conducted by the Department of
Revenue which reassessed appellant's tax liability for the tax
years 1969-1973.
This action was filed on July 2, 1976, pursuant to section
84-4502, R.C.M. 1947, in the District Court, Lewis and Clark
County, seeking a recovery of the taxes paid under protest. On
August 3, the Musselshell County attorney, on behalf of the county
treasurer, filed a motion for change of venue the District Court,
Musselshell County. The Department of Revenue joined in the
motion. A hearing was held and the motion was granted. Appellant
now appeals to this Court.
The sole issue on appeal is whether the District Court
erred in granting respondent's motion for change of venue.
Controlling this issue is section 93-2902, R.C.M. 1947,
which states:
"Actions for the following causes must be tried
in the county where the cause, or some part
thereof, arose, subject to the like power of the
court to change the place of trial:
"1. For the recovery of a penalty or forfeiture
imposed by statute; except that, when it is imposed
for an offense committed on a lake, river, or other
stream of water situated in two or more counties,
the action may be brought in any county bordering
on such lake, river, or stream, and opposite to
the place where the offense was committed.
"2. Against a public officer, or person specially
appointed to execute his duties, for an act done
by him in virtue of his office; or against a person
who, by his command or in his aid, does anything
touching the duties of such officer."
The determinative factors of the proper place of venue
are the nature of the cause of action and the place where it
arose. Guthrie v. Montana Department of Health and Environmental
Sciences, Mont . , 561 P.2d 913, 34 St.Rep. 155; Billings
Associated Plumbing et al. v. Emerson, Mont . , 563 P.2d
1123, 34 St.Rep. 309.
The nature of the cause of action is an action to recover
taxes paid under protest. The additional tax assessment on
appellant bank was prompted by an audit of the bank which is
located in Musselshell County. The audit was actually conducted
in Musselshell County. The tax was paid under protest to the
Musselshell County treasurer. It is being held in a special tax
protest fund therein and any refund found due and owing to appel-
lant will be paid by the county treasurer.
It is clear, therefore, that the cause of action arose
in Musselshell County and venue is proper therein.
Judgment affirmed.
Justice