Jones v. Swank

Collins, J. This was an action for the value of goods, wares, and merchandise sold and delivered, and for services rendered and labor performed. As a second defense, by way of counterclaim, the answer alleged that prior to the commencement of this action plaintiffs caused proceedings in attachment to be instituted upon the claims and causes of action set forth in the complaint, and will ■ fully, maliciously, and with intent to injure defendant caused his property to be seized and levied upon, greatly in excess in value of the amount demanded in the summons, and deprived defendant of the use of said property for a certain period of time; and, further, that in such proceedings plaintiffs, with said intent, misused and neglected said attached property. The value of the use of the property, and the decrease in value of such as was misused and neglected, was averred, and for the sum total defendant counterclaimed. A demurrer to the second defense or counterclaim ay as interposed, and by the court below sustained. It is apparent from the above statement that the cause or causes of action set up in the answer did not arise out of the contracts or transactions alleged in the complaint as the foundation of plaintiffs’ claims, nor were they connected with the subject of the action. The defendant’s right to recover damages for an abuse of the writ of attachment arose, if at all, out of plaintiff’s attempt to secure and collect the amount of their claims through attachment proceedings, and in [263] no way were these proceedings connected with the subject of the action. The facts upon which defendant rested his alleged counterclaim arose subsequent to, and were wholly independent of, those set forth in the complaint, and had no connection with them. See Schmidt v. Bickenbach, 29 Minn. 122, (12 N. W. Rep. 349.) The court below ruled correctly when sustaining plaintiff’s demurrer. There is room for diversity of opinion on the question of practice raised by the 2d, 3d, and 4th specifications of error. By 1878 G-. S. ch. 66, § 49, it is provided that actions of the nature of that at bar shall be tried in the county in which the defendant shall reside at the time of their commencement. The method of removing actions instituted elsewhere is pointed out in section 51. But the right to have the cause tried in the county of defendant’s residence is a qualified one, for the power of the court to change the place of trial for the convenience of witnesses and for other causes specified in the statute is undisputed. So the question is whether the defendant has the absolute right, in the first instance, and without regard to any other consideration, to have the action transferred to the county in which he resides, or can his motion for such transfer be met and resisted by a motion to retain it for trial in the county originally named in the summons, or, for that matter, to send it to a county other than that in which it was brought or the one in which defendant resided, for the reasons mentioned in the second subdivision of section 51? Attention has been called by counsel to decisions of the courts of last resort upon both sides of this question, and we are well aware of the difference of opinion existing among the judges of the district court within this jurisdiction. The writer, when serving upon the district bench, following the rulings of his predecessor, always changed the place of trial, upon proper showing, to the county in which the defendant resided, but without prejudice to the plaintiff’s right to move the court to again transfer the cause for trial if good grounds existed for such a motion; and in one instance this method of procedure led to the presentation of two motions in the same action, — the first to change the place of trial from the county named in the summons to that in which the defendant resided, both counties being in the same judicial district, which motion was granted; and the second to return the action for trial to the county first mentioned, that the witnesses might be [264] convenienced, and the ends of justice promoted. This same condition might exist in every judicial district in this state save one, and seems quite absurd. We believe that no good reason exists for holding that a defendant’s motion for change of place of trial to the county in which he resides cannot be met and opposed by counter affidavits, or considered with a motion to retain the cause in the county in which it has been brought, or to transfer it for trial to some third county, if it be made to appear that the convenience of witnesses and the ends 'of justice will be promoted by such a course. As has been said in one of the Wisconsin cases hereinafter cited, the statute contains no words expressly limiting the court to an investigation of the facts stated in support of a motion made under one clause, or prohibiting it from receiving counter affidavits, or listening at the same time to an opposing motion, made under some other clause. This mode of procedure will avoid the absurdity before mentioned, and prevent a multiplicity of motions. As before stated, the courts are at variance on the subject. Sustaining our views, we cite Jenkins v. California Stage Co., 22 Cal. 538; Hall v. Central Pac. R. Co., 49 Cal. 454; Couillard v. Johnson, 24 Wis. 533; Bonnell v. Esterly, 30 Wis. 552. A later case, Meiners v. Loeb, 64 Wis. 343, (25 N. W. Rep. 216,) is based upon a statute unlike that considered in the earlier cases. (Opinion published 55 N. W. Rep. 1126.) Judgment affirmed.