No. 14521
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
STATE OF MONTANA, SONNY OMHOLT, AUDITOR
FOR THE STATE OF MONTANA, and the PUBLIC
EMPLOYEES' RETIREMENT BOARD OF THE STATE
OF MONTANA,
Plaintiffs and Respondents,
VS.
SECURITY STATE BANK,
Defendant and Appellant.
Appeal from: District Court of the First Judicial District,
Honorable Peter G. Meloy, Judge presiding.
Counsel of Record:
For Appellant:
Smith and Harper, Helena, Montana
Loren J. O'Toole, Plentywood, Montana
For Respondents:
Hon. Mike Greely, Attorney General, Helena, Montana
Submitted on briefs: November 28, 1979
- , = -
Decided: ;kc '
Filed: 115 Mont.
146, 153,
139 P.2d 528, 529.
This Court in Rapp v. Graham (1965),
145 Mont. 371,
373-4,
401 P.2d 579, 581, said that statutory provisions
creating exceptions to the general rule recognizing a
defendant's privilege to be sued in his own county will not
be given a strained or doubtful contruction. Applying that
rule here, the only possible construction of section 17-4-
103(1), MCA, is that it empowers the State Auditor to commence
such suits in the District Court for Lewis and Clark County.
The State here having chosen a venue in which the action is
properly laid to commence its suit, the courts are powerless
based upon the residence of the parties, to transfer the
cause to another venue although the other venue itself may also
have been proper for the commencement of the action.
The power of the District Court to change the place of
trial, based on residence exists only when the county designated
in the complaint is not the proper county. Section 25-2-
201, (I), MCA [formerly section 93-2906 (1), R.C.M. 19471.
The Bank cites the decisions in State v. Campbell
(1906),
3 Cal. App. 602,
86 P. 840; and People v. Pinches
(1931),
214 Cal. Rptr. 177,
4 P.2d 771, 772, as supporting
the Bank's position that similar statutes empowering the
State Auditor to commence suits in courts at the seat of
government in California do not grant exclusive jurisdiction
to such courts but that the actions may be transferred to
the place of defendant's residence. On the other hand, the
State points to the Idaho decision in State v. Jones (19211,
34 Idaho 83,
199 P. 645, which comes to an opposite conclusion.
However, we do not need to pick and choose between the
-4-
possibly conflicting decisions of those jurisdictions. Our
statutes and decisions under them are clear enough. In this
case, the State Auditor has commenced his action in a proper
county under the statute and such cause cannot now be transferred
to another county on the basis of the residency of the
defendant.
As to the second ground urged by the Bank for change of
venue, that the interests of justice and the convenience of
witnesses would be best served by a change of venue to the
County of Sheridan, the District Court properly denied the
change based on these grounds, but left the matter open for
future decision if the Bank should choose to renew its
motion at a proper time.
Section 25-2-201 (3), MCA [formerly section 93-2906 ( 3 ) ,
R.C.M. 19471 provides that the court must change the place
of trial when the convenience of witnesses and the ends of
justice would be promoted by the change.
In Maio v. Greene (1943),
114 Mont. 481, 488,
137 P.2d
670, 672, we held that the matter of the convenience of witnesses
cannot be invoked until after the answer has been filed in
the cause, since the trial court cannot consider the materiality
of the witnesses in question or determine the issues until then.
In McNeill v. McNeill (1949),
122 Mont. 413, 417,
205 P.2d 510, 512,
we held that until the defendant has answered, any action of
the District Court in determining a motion for change of venue
upon these grounds is premature. That policy has been preserved
in our rules of Civil Procedure. Rule 12(b)(iii), M0nt.R.Civ.P.
provides that any request for a change in the place of trial
based on the convenience of witnesses and the ends of justice
must be presented by motion within twenty days after the answer
to the complaint, or to the cross-claim where a cross-claim is
filed or a reply to an answer where a reply is authorized. The
-5-
District Court by its order, kept the door open for the
Bank to renew its motion for change of venue if at the
proper time it appears that the ends of justice and the
convenience of witnesses would be promoted.
Since we find no error in the order of the District Court
denying the motion for change of venue, the appeal is dismissed.
Justice
We Concur:
' Chief Justice