Banbury v. Brailsford , 66 Idaho 262 ( 1945 )

By petition for rehearing, respondent urges that appellant, not having appealed from the order denying the change of place of trial as provided by sub-division 2, Section 11-201, I.C.A., may not now question the correctness thereof, relying onMaple v. Williams, 15 Idaho 642, 98 P. 848; Ringer v. Wilkin,32 Idaho 330, 183 P. 986; Boise Assn. of Credit Men v. Insurance Co., 44 Idaho 249,256 P. 523.

Appellant counters with the proposition that those cases involved transitory actions, whereas this is local, and exclusive jurisdiction is in the county where the real estate is situated, and lack of such jurisdiction may be raised any time and any place.

The majority opinion initially held to such effect, but on the first argument respondent did not urge the failure to appeal from the order as a bar and the point was not discussed.

Appellant now contends that not thus having been previously raised, it cannot now be considered on rehearing. The court has held to the contrary.

"It is contended, in limine, by counsel for respondent that, as some of the questions raised on the rehearing were not raised on the original hearing, they cannot now be considered. In reply to this we say that the rehearing was granted generally, and upon no specified points or questions, and therefore any questions that could have been properly raised on the original hearing could be presented on the rehearing. * * *" (Olympia Min. Co. v. Kerns, 13 Idaho 514 at 527, 91 P. 92.)

The reason now advanced by respondent could certainly have been urged in the first instance and the court above specifically states, "any questions that could have been properly raised on the original hearing could be presented on the rehearing."

Appellant sought a change of venue and in his appeal from the judgment urges that the trial court was in error in denying it. The question of venue has at all times been in the case at appellant's instance so he may not complain that it be fully considered on the merits. (Malcolm v. Hanmer, 64 Idaho 66, on petition for rehearing at 86, 127 P.2d 331.)

The court has even entertained a second rehearing and considered matters not theretofore similarly urged.

"While, as a matter of strict legal right, failure of counsel sufficiently to present a cause for determination is no ground for a rehearing, and matters presented for the first time on application for rehearing need not necessarily be considered (4 C.J., p. 627, sec. 2488, p. 629, sec. 2494),it is more essential that justice be done than that exact ortechnical rules of practice or procedure be followed. * * *" (Emphasis ours). (Wallace B. T. Co. v. First Nat. Bk.,40 Idaho 712 at 725, Opinion on rehearing at 724, 237 P. 284.)

The pivotal question is whether the statutes of this state have so irremovably fixed the venue of actions involving real property in the county where the same is situated that by failure to follow the statutory procedure outlined to enforce a trial therein, the right so to do is waived.

The cases relied upon by appellant to support his ultimate contention that Section 5-401, I.C.A. confers exclusive jurisdiction on the county where the property is located, on analysis and consideration of the grounds for their holdings, in light of the difference between the under-lying constitutional and statutory provisions there considered and our statutes render such authorities entirely inapplicable.

While it is true that Section 5-401, I.C.A. is identical with Section 392 of the California Court of Civil Procedure, the California authorities cited did not place their holding of exclusive jurisdiction on such statute, but upon a provision in the California constitution, Article VI, Section 5, which we do not have, which is clearly apparent from a cursory reading of the opinions.

"* * * The action, therefore, is an action to enforce a lien upon real property; and the constitution provides that 'all actions for * * * the enforcement of liens upon real estate shall be commenced in the county in which the real estate, or any part thereof, affected by such action or actions, is situated.' The superior court of Fresno had, therefore, no jurisdiction over the case, and no authority to enter the judgment. * * *" (Urton v. Woolsey (Cal.), 25 P. 154 at 155.)

It will be noted that in the above case no reference whatever is made to the statute.

"In section 5, art. 6, of the constitution of this state, it is provided, as to superior courts, that their process shall extend to all parts of this state, 'provided that all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon, real estate, shall be commenced in the county in which the real estate, or any part thereof, affected by such action or actions, is situated.' If our reasoning so far is correct, it must be apparent, without further argument, that this case is one which, under the constitution, should have been commenced in the county where the land is situated, to-wit, in Siskiyou county. * * *" (Fritts v. Camp (Cal.), 29 P. 867 at 868.)

"Pursuant to the foregoing constitutional provision, section 392 of the Code of Civil Procedure similarly confers jurisdiction upon the courts in the county in which the real property, which is the subject of the action, is situated, in partition suits, foreclosure of mortgages and other liens on real property, and in suits to recover possession of the property or an interest therein, to determine, in any form, the rights or interests in such property and for injuries thereto." (Vaughan v. Roberts (Cal.), 113 P.2d 884 at 889.)

It will be noted that the court in the last cited case states the statute was pursuant to the constitutional provision; absent such constitutional provision, there is no basis for holding that the statute gives exclusive jurisdiction, that is, jurisdiction which cannot be waived.

The Washington courts have held the jurisdiction exclusive because of two reasons, neither of which are pertinent or controlling in view of the differences in the statutes.

McLeod v. Ellis (Wash.), 26 P. 76, held that Section 48 of their code, similar to Section 5-401, I.C.A., gave exclusive jurisdiction because the subject matter contained in our Section 5-405, I.C.A. was not in a separate section, but in their Section 50, coupled with subject matter similar to 5-401, I.C.A., concluding that by such joinder, the waiver by not objecting, applied only to transitory actions. Our waiver provision being in a separate section was clearly intended by the legislature to apply to all situations theretofore enumerated in Sections 5-401 through 5-404, I.C.A. inclusive, since no exception whatever was made in the statute. On the point involved in the venue of actions involving real property,McLeod v. Ellis, supra, might well be considered mere dictum because the court ultimately determined that the suit only involved personality and, therefore, was transitory, hence in passing upon the venue of real property actions, it was deciding something which was not before the court.

"Under the construction thus adopted, were we to hold further that the action was one for injuries to the realty, the judgment would necessarily be reversed, and the action dismissed for want of jurisdiction in the court below. But theappellee contends, and, on the whole, we conclude, rightly,that his action was one for the value of his trees aspersonality merely, without any claim for injury to his land. * * *" (Emphasis ours). (McLeod v. Ellis, supra at 78.)

"* * * It is the policy of our law that all transactions affecting the title to real estate shall be matters of record in the county where such real estate is situated, so that anyone concerned therewith may be informed as to the condition ofits title by an examination of the public records in suchcounty. * * *" (Emphasis ours). (Seymour v. LaFurgey (Wash.),92 P. 267.)

An examination of the Washington statutes discloses that they do not have a statute like our Section 5-409, I.C.A.¹, which absolutely does away with the latter reason assigned by the Washington court. Thus the statement that venue in Washington is a matter of jurisdiction rests upon a statute, not drawn as ours, and second a reason, which our statute obviously distinguishes. (Miles v. Chinto Mining Co. (Wash.),153 P.2d 856.)

Woodworth v. Henderson (Colo.), 65 P. 25, was not an action involving real property. Mayor, Etc., of Nashville v. Webb (Tenn.), 85 S.W. 404, for its conclusion that a county other than the one where real estate is located has no jurisdiction, and the same cannot be waived, relied upon Board of Directors v. Bodkin (Tenn.),69 S.W. 270, which case held that the action therein considered was against public officials on a government obligation and they had to be sued where they held office and could not waive lack of jurisdiction because of their official immunity.

Furthermore, an examination of the Tennesee statutes, Article 5, c. 4, Part III, Code of Tennessee 1884, and c. 4, Part III, Code of Tennessee 1932, discloses that they have no such provision as 5-406 or 5-409, I.C.A.

Oklahoma does not have statutes similar to 5-405 or 5-409, I. C. A. Hence Franklin v. Margay Oil Corporation (Okla.),153 P.2d 486, is not applicable herein.

Section 5-405, I.C.A.², makes no distinction between transitory or local actions. If, nevertheless, it is held not to apply to local actions, there is just as much reason to hold that Section 5-406, I.C.A. does not apply to local actions, yet Section 5-409, I.C.A. contemplates or recognizes that judgment involving real property may be rendered in counties other than where the property is situated, hence that jurisdiction as such is not exclusive in the county where the real property is situated. Otherwise that section is well nye meaningless and we cannot presume that the legislature intended an ineffective enactment. (Diefendorf v. Gallet, 51 Idaho 619 at 634,10 P.2d 307.)

All of our venue statutes were enacted at the same time in c. 12, 1881 Territorial Session Laws, p. 39. The head-note in the Session Laws indicates that it was the legislative intent that Section 5-405, I.C.A. apply to all causes of action, hence failure to transfer to the proper county could be waived. Section 642, c. 41, of the 1881 statutes provided without exception for an appeal from "an order granting or refusing to grant a change in the place of trial." (Page 146).

" 'The rule that statutes in pari matera should be construed together applies with peculiar force to statutes passed at the same session of the legislature.' " (25 R.C.L., Secs. 167, 168, 169 and 170; Peavy v. McCombs, 26 Idaho 143, 140 P. 965;Perrault v. Robinson, 29 Idaho 267 at 275, 158 P. 1074; State v.McBride, 33 Idaho 124 at 128, 190 P. 247.)

In Idaho this is purely a statutory question and the clear statement and plain intendment of our statutes are that the legislature did not intend to make a distinction between transitory or local actions as to waiver or appeals in connection therewith, therefore, I dissent.

¹ "5-409. Actions affecting real estate — Proceedings after judgment. — When an action or proceeding affecting the title to or possession of real estate has been brought in or transferred to any court of a county other than the county in which the real estate, or some portion of it, is situated, the clerk of such court must, after final judgment therein, certify, under his seal of office, and transmit to the corresponding court of the county in which the real estate affected by the action is situated, a copy of the judgment. The clerk receiving such copy must file, docket and record the judgment in the records of the court, briefly designating it as a judgment transferred from __________ court (naming the proper court.)"

² "5-405. Improper venue — Proceedings. — 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 and answers or demurs, files an affidavit of merits, and demands, in writing, that the trial be held in the proper county."