Shields v. Shields ( 1943 )

The plaintiff, John M. Shields, and his wife the defendant, Hazel A. Shields, are bona fide residents of the state of Montana. Both formerly resided together in Madison county, but at the time the husband filed this suit for divorce in Silver Bow county he was then a bona fide resident of that county, while his wife, Hazel A. Shields, was then a bona fide resident of Madison county wherein she actually lived and worked at the abstract of title business. The wife, desiring to have the divorce suit tried in her home county of Madison, made timely and proper demand therefor pursuant to section 9097, Revised Codes, and such demand was complied with by the district court. I am of the opinion that the court below acted properly in granting the change of venue. (State ex rel. Bonners Ferry Lumber Co., Ltd. v. DistrictCourt, 74 Mont. 338, 240 P. 388.)

While summons issued out of the district court of Silver Bow county on November 25, 1941, the record does not show any attempt made to serve same on the defendant, Hazel A. Shields, in the county of her residence. Instead, the plaintiff waited for over four months when on April 8, 1942, his wife happened to be in Butte on legal business in connection with the taking of a deposition when he delivered the summons to the sheriff of Silver Bow county, who, on that date personally served the defendant in Butte.

In Montana there is no statute specially prescribing the venue of actions for divorce. A plaintiff who is a bona fide resident of the state for the time prescribed by statute is privileged to file his complaint and commence his suit for divorce in any county in the state, subject only to the right of the defendant to ask that the action be changed to the proper county for trial. This is a right which the defendant has and which she must exercise at the proper time and in the proper manner pursuant to section 9097 or the right will be waived and the action tried where commenced.

There being no statute specially prescribing the venue of divorce actions, the general venue statute (sec. 9096, Rev. Codes) controls. It is under this statute that this defendant wife claims the right to have this suit for divorce against her tried in Madison county where she resides.

When analyzed the first sentence of section 9096, Revised Codes, consists of a first or main clause and four subordinate clauses, viz:

(Main clause) "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,"

(Exception No. 1) "or where the plaintiff resides, and the defendants, or any of them, may be found;"

(Exception No. 2) "or, if none of the defendants reside in the state, * * * the same may be tried in any county which the plaintiff may designate in his complaint; * * *"

(Exception No. 3) "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; and"

(Exception No. 4) "if, any defendant or defendants may be about to depart from the state, such action may be tried in any county where either of the parties may reside, or service be had."

A divorce suit is a chancery suit. (Black v. Black,5 Mont. 15, 2 P. 317.) As this court said in McKinney v.Mires, 95 Mont. 191, 198, 26 P.2d 169, 172, "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."

In other words, under section 9096 the defendant is entitled to demand that the divorce action against her be tried in the county of her residence at the commencement of the suit except: (1) Where the defendant cannot be located or found in the county wherein she is known to reside; (2) where the defendant resides without the state; (3) where, although residing in the state, defendant's place of residence is unknown or cannot be ascertained; and (4) where the defendant may be about to depart from the state.

It is not contended that defendant was in hiding nor that she could not be found or located in the county wherein she resides, nor that the county of her residence was unknown to her husband, the plaintiff, nor that she was about to depart from the state, hence it is clear that the provisions of the subordinate clauses and exceptions above, are wholly inapplicable. When, as here, the county of the defendant's residence is within the state and well known to plaintiff, when defendant is not in hiding nor attempting to escape to avoid the service of process, she is entitled, upon proper and timely demand, to have the divorce action against her tried in the county of which she is a bona fide resident under "the first or main clause of section 9096, above. (McKinney v. Mires, supra.) It is only when the first or main clause cannot be applied that one of the alternatives provided for in the four succeeding clauses may control the venue.

In Lyons v. Brunswick-Balke-Collender Co., 20 Cal. 2d 579,127 P.2d 924, 927, it is said:

"The right of the 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. "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 the plaintiff would claim such right, he must bring himself within the terms of the exception." (Brady v. Times-Mirror Co., 106 Cal. 56,39 P. 209.' Brown v. Happy Valley Fruit Growers, 206 Cal. 515,522, 274 P. 977, 979)".

"Under statutes similar to ours, however, where the question has been squarely presented and decided, the courts have uniformly held the defendant has the right to have the cause transferred to the county wherein he resides, (Warner v.Warner [100 Cal. 11, 34 P. 523]; Duffill v. Bartlett,53 Nev. 228, 297 P. 504; Usher v. Usher, 4 Cal. Unrep. 521, 36 P. 8; People ex rel. Lackey v. District Court,30 Colo. 123, 69 P. 597, 598; People v. Pinches [214 Cal. 177,4 P.2d 771]; Modine v. Modine, 123 Cal. App. 67, 10 P.2d 776, 777; Hockett v. Hockett, 34 S.D. 586, 149 N.W. 550,551, Ann. Cas. 1917A, 938)." (Finnell v. Finnell, 59 Idaho 148, 81 P.2d 401,402.)

By section 9097, Revised Codes, is the defendant in a lawsuit given the right and advised of the procedure of exercising the right to have such suit transferred to the proper county for trial. In the preceding section (sec. 9096), the first and foremost factor prescribed for determining the proper county is the place of residence of the defendant at the commencement of the action. If there is one action that should be tried in the home county of the defendant it is a divorce action. The statute gives the defendant the right to a trial in the county where she actually makes her home and living. The right is a most valuable one. I cannot agree that this court is justified nor that it has the authority to deny to this defendant the right to have this suit tried in her home county where reside her neighbors and friends.