(Download) "Mckinney v. Mires Et Al." by Supreme Court of Montana # Book PDF Kindle ePub Free
eBook details
- Title: Mckinney v. Mires Et Al.
- Author : Supreme Court of Montana
- Release Date : January 17, 1933
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 60 KB
Description
Change of Venue ? Time for Making Motion ? Convenience of Witnesses ? When Motion Premature ? Actions ? Suits in Equity ? Trusts and Accounting ? Improper Refusal of Motion. Change of Venue ? Time for Making Motion ? When Motion Too Late. 1. Where plaintiff has chosen the wrong county for the commencement of his action, defendant, to obtain a change of venue, must move "at the time he appears and answers or demurs" (sec. 9097, Rev. Codes 1921), else his motion comes too late; if plaintiff complies with the statute and makes the proper showing, he is entitled to a change to the proper county as a matter of right. - Page 192 Same ? Convenience of Witnesses ? When Motion Premature ? Motion Concedes That Otherwise Action Commenced in Proper County. 2. A motion to change the place of trial on the ground that the convenience of witnesses will be promoted thereby is addressed to the sound discretion of the trial court; if made before the answer is filed it is premature, and, when made, it concedes that otherwise the action was commenced in the proper county. Same ? Court may Act Only on Demand for Change ? Demand for Change to Improper County of No Avail. 3. Under section 9097, Revised Codes 1921, the district court may act only on a demand for a change of venue, and a demand for a change to an improper county is of no avail. Same ? Statute Relates to Both Actions at Law and Suits in Equity. 4. While the Code sections relating to venue and change of venue (sec. 9093 et seq.) refer only to "actions" which, technically speaking, may be said to apply only to actions at law, the term includes "suits" embracing both law actions and suits in equity. Statutes ? Code System of Jurisprudence ? Purpose of System. 5. The purpose of the adoption of the Code system of jurisprudence was to simplify and blend equity and law procedure, so that the same court might administer justice in any case by appropriate procedure and judgment. Same ? Equity ? Actions ? Court will Administer Full Relief ? Suit Transitory, Rather Than Local. 6. Equity decrees primarily and properly act in personam and at most collaterally only in rem; hence in cases of fraud, trust or contract, whenever a court of equity has acquired jurisdiction over the parties, it will administer full relief without regard to the nature or situation of the property in which the controversy has its origin; such a suit is transitory rather than local, with relation to venue. Same ? Suit in Equity ? Trusts ? Accounting ? Venue. 7. Held, that a suit seeking to establish a trust in corporate stock, asking for an accounting and an injunction against the transfer of any shares of stock pending suit, in which proof of the contract out of which it arose was but incidental to the establishment of the trust, was purely equitable and transitory, and governed, as to venue, by the principal clause of section 9096, Revised Codes 1921, i.e., the place of residence of the defendants or any of them. Same ? Suit to Establish Trust ? May Mere Stakeholder Ask for Change of Venue to County of Residence? 8. Quaere: May a defendant, sued with others in a suit to establish a trust and seeking an accounting, who stands only in the position of a stakeholder and not interested in its outcome, ask for a change to the county of his residence? Same ? Suit to Establish Trust in Corporate Stock ? Circumstances Under Which Change of Venue from County in Which None of Defendants Resided ? County of Appealing Defendants Proper. 9. In a suit to establish a trust in corporate stock in which an accounting was asked, against certain nonresidents who were not served with summons and as against whom alone it could have been commenced in any county, a nonresident who was served in M. county, and several others residing and served in G. county, the latter were entitled to a change of venue from a county in which none of the defendants resided to the county of their residence. - Page 193