No. 80-221 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA ex rel. COLLEEN 

KESTERSON, VIRGINIA POLSEN, MELODY 

NEBEL, BARBARA WOOD, SHERI BARDO, and 

ANNE KOBYLENSKI, on behalf of themselves and all other persons similarly 

situated, 

Relators, 

DISTRICT COURT OF THE FOURTH JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, IN 

AND FOR THE COUNTY OF MISSOULA, and 

the HONORABLE JOHN S. HENSON, Judge 

thereof, 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Relators: 

McClelland Law Offices, Missoula, Montana 

Arden C.McClelland argued, Missoula, Montana 

For Respondents: 

Gough,, Shanahan, Johnson & Waterman, Helena, Montana 

Ronald Waterman argued, Helena, Montana 

Boone, Karlberg & Haddon, Missoula, Montana 

Sam Haddon argued, Missoula, Montana 

Richard P. Heinz, County Attorney, Polson, Montana 

Kurt W. Kroschel, Billings, Montana 

Hughes, Bennett, Kellner and Sullivan, Helena, Montana 

Garlington, Lohn and Robinson, Missoula, Montana 

Submitted: July 17, 1980 

Decided : JuL "E W80 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Relators have applied to this Court for a writ of supervisory control, directed to the District Court of the Fourth 

Judicial District, in and for the County of Missoula, and the 

Honorable Judge John S. Henson. Relators are plaintiffs in the 

District Court action, and seek to have the proceedings on a 

motion for a temporary injunction continued in the District 

Court, despite an appeal taken to this Court by defendants. This 

Court ordered an expedited hearing on July 17, 1980. 

On February 15, 1980, two women residing in Lake County 

and four women residing in Missoula County filed a suit in 

Missoula County, denominating it a class action. The defendants 

for purposes of this appeal are Dow Chemical Company, Lake 

County, the Lake County Weed Board, Missoula County, and the 

Missoula County Weed Board. A1 1 plaintiffs a1 lege miscarriages, 

property damage, and other mental and physical injuries as a 

result of herbicide spraying in their home environments. Prior 

to the hearing on plaintiffs' motion for an injunction to stop 

the spraying, defendant Dow Chemical Company moved for a change 

of venue to Lake County as to the claims filed by the two Lake 

County plaintiffs. Lake County and the Lake County Weed Board 

moved to change venue to Lake County as to all claims filed 

against them. Because of uncertainty as to whether this action 

could be maintained as a class action, a matter yet to be heard, 

the district judge denied the motions for change of venue, with 

"leave to refile the motions if the circumstances later on in the 

proceedings should be such that it would be appropriate." 

Defendants promptly filed an appeal to this Court from 

the order denying change of venue and the district judge 

stopped all further proceedings in the District Court. 

Plaintiffs, arguing that the judge's order was a nonappealable order, applied to this Court for a writ, requesting 

this Court to dismiss the ,appeal and to order the proceedings to _1 -- / -. 

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The order issued by the district judge denying the change 

of venue was an appealable order. An interlocutory order is 

normally not appealable, unless there is a special provision 

making it so. Schultz v. Adams (1973), 161 Mont. 463, 465, 507 

P.2d 530, 532. By the terms of Rule l(b), M.R.App.Civ.P., an 

order denying the change of venue is specifically appealable: 

"A party aggrieved may appeal from a judgment or 

order . . . in the following cases: 

(b) . . . from an order changing or refusing 

to change the place of trial when the county 

designated in the complaint is not the proper 

county. . ." 

The statutory language of Rule l(b) does not require the 

defendants to wait and see if they get another opportunity to 

raise the venue issue. It allows them to take an immediate 

appeal on the denial of the venue motion, so as to not jeopardize 

their right to an appeal. See Sealey v. Majerus (1967), 149 

Mont. 268, 269, 425 P.2d 70. 

Because the venue order in this case is appealable, and an 

appeal was timely filed, the district judge acted properly 

in staying further proceedings in the District Court. It is 

well-established that once a notice of appeal is filed, the 

District Court loses jurisdiction to proceed. McCormick v. 

McCormick (1975), 168 Mont. 136, 138, 541 P.2d 765, 766. Since 

the appeal was properly taken, we next proceed to the merits of 

that appeal. 

The issues raised by defendants on appeal all involve 

questions of venue: 

1) Does the filing of a suit as a class action affect the 

determination of venue? 

2) Is venue proper in Missoula County as to the claims 

filed against defendants Lake County and the Lake County Weed 

Board? 

3) Is venue proper in Missoula County as to the claims 
filed against defendant Dow Chemical Company by the two Lake County 

plaintiffs? 

Because this suit was filed as a class action, respondents 

suggest that the District Court should consider whether venue as 

to any one plaintiff in the class is proper in Missoula County, 

in order to determine whether the action can be maintained in 

Missoula County. This approach does not appear to be consistent 

with the traditional notions of venue which aim toward placing a 

trial in a county favorable to defendant. Although this Court 

has not had occasion to address the issue of whether the filing 

of a suit as a class action affects venue, several federal courts 

have looked at this question. The decisions uniformly hold that 

venue for a class action under Rule 23, F.R.Civ.P. is determined 

just as it is for a comparable nonclass action. Thus, venue must 

be satisfied as to all named class representatives, just as it 

must be as to all plaintiffs and defendants in a nonclass action. 

Carolina Casualty Insurance Co. v. Local No. 612, etc. (N.D.Ala. 

1956), 136 F.Supp. 941, 943; 3 B Moore's Federal Practice 923.96 

(1980) ; Research Corp. v. Pfi ster Associated Growers, Inc. 

(N.D.111. 1969), 301 F.Supp. 497, 501. In so holding the courts 

have relied on the language of Rule 82, F.R.Civ.P., which has a 

counterpart in Rule 82, M.R.Civ.P.: 

"Except as provided in Rule 4 these rules shall 

not be construed to extend or limit the jurisdiction of the district courts of Montana or the 

venue of actions therein." 

See United States and EEOC v. Trucking Employers, Inc. (D. 

D.C. 1976), 72 F.R.D. 98, 100. 

We recognize that the legislature has the power to determine where actions shall or may be tried, Fraser v. Clark (1954), 

128 Mont. 160, 176, 273 P.2d 105, 114, and we note that the 

Montana statutes contain no specific venue provisions for class 

actions. In the absence of a directive otherwise by the legislature we hold in accord with the federal courts and find that 

venue in a class action should be determined as it is in a 

nonclass action. See also, Walker v. City of Houston (S.D. Tex. 
1972), 341 F.Supp. 1124. If later certification proceedings 

result, we have found no authority, state or federal, concerning 

the status of claimed class representatives in the period of time 

between the filing of the suit and the District Court's certification of proper class representatives. 

Accordingly, we have assumed that the named plaintiffs are 

proper representatives of the class in the event that the 

District Court determines this is a proper class action. 

Appellants Lake County and the Lake County Weed Board 

moved for a change of venue as to all claims filed against them 

in Missoula County. The basis for their motion was section 

25-2-106, MCA, which provides in part that "[aln action against a 

county may be commenced and tried in such county . . ." This 

Court held in Good Roads Machinery Co. v. Broadwater County 

(1933), 94 Mont. 68, 70-71, 20 P.2d 834, 835, that the "may" in 

the statute referred to a grant of permission to sue a county, 

but in so doing a plaintiff was limited to bringing the suit in 

the defendant county. Respondents attempt to rely on State ex 

rel. Montana Deaconess Hosp. v. Park County (1963), 142 Mont. 26, 

381 P.2d 297, but we find that case distinguishable on the facts. 

In Deaconess Hospital, two counties disclaimed liability for one 

hospital payment for a welfare patient. Because it was necessary 

to determine which of the counties was the residence of the 

patient, and thus liable, both counties had to be joined as party 

defendants. This Court found that either county would be a 

proper one in which to prosecute the action. Deaconess Hospital, 

supra, 142 Mont. at 27-28, 381 P.2d at 298. 

In this case, the complaint does not allege that either 

Missoula County or Lake County was the exclusive cause of one 

injury. Rather, the pleadings indicate that the plaintiffs could 

have been damaged by the actions of either or both counties 

acting separately. In such a situation both counties are not 

necessary parties to one action, and the counties should be sued 

where they are located. 
Despite respondents' argument that convenience and judici a1 

economy dictate that the suit be brought in Missoula County, it 

is apparent from the statutes and cases cited that defendants 

Lake County and the Lake County Weed Board are entitled to have 

venue changed to Lake County. Sect ion 25-2-201 (I), MCA, requi res 

that "[tlhe court or judge must, on motion, change the place of 

trial in the following cases: (1) when the county designated in 

the complaint is not the proper county." This section is not 

discretionary. Lunt v. Division of Workmen's Compensation (1975), 

167 Mont. 251, 253, 537 P.2d 1080, 1081. The judge must grant 

the change, before a motion relating to convenience can be heard 

under section 25-2-201(3), MCA. Maio v. Greene (1943), 114 Mont. 

481, 487, 137 P.2d 670, 671. 

Appellant Dow Chemical moved for a change of venue as to 

the claims of the two Lake County plaintiffs pursuant to section 

25-2-102, MCA, which provides in part that "[alctions for torts 

may be tried in the county where the tort was committed. . ." 

This Court has determined that this section should be interpreted 

to allow trial in the county of defendant's residence, or in the 

county where the tort was committed. Section 25-2-108, MCA; 

Seifert v. Gehle (1958), 133 Mont. 320, 322, 323 P.2d 269, 270. 

The record is silent in this case as to the place of residence of 

the defendant. Thus the suit would be properly filed in Lake 

County, the situs of the tort allegedly committed against the 

Lake County plaintiffs. Appel lant Dow Chemical Company is 

entitled to the change of venue as to the claims filed by the 

Lake County plaintiffs. 

Defendant Dow Chemical Company raises an alternative basis 

on which to find venue in Lake County. In their complaint, all 

plaintiffs a1 lege real property damage. Sect ion 25-2-103(1) (b), 

MCA, sets venue for actions for injury to real property "in the 

county in which the subject of the action . . . is situated. . ." 

The "subject of the action" in this case would appear to be 

located in Lake County as to the Lake County plaintiffs, and pro- 
perly triable there. See Fraser v. Clark (1954), 128 Mont. 160, 

178, 273 P.2d 105, 115. This Court has determined that if a 

complaint contains more than one cause of action, and a defendant 

is entitled to a change of venue in one of those actions, then 

the motion for change of venue must be granted. This is so 

despite the fact that the other causes of action are properly 

triable where the action was commenced. Beavers v. Rankin 

(1963), 142 Mont. 570, 572, 385 P.2d 640, 641. Thus, where venue 

as to the real property damage claim against Dow Chemical Company 

is properly in Lake County, venue as to all claims against Dow 

Chemical Company should be moved to Lake County. 

For the foregoing reasons, we find that defendants' appeal 

to this Court was properly taken, and that the district judge 

acted correctly in refusing to continue further proceedings in 

the District Court. Thus, there is no sufficient basis for relators to invoke the supervisory control of this Court. 

Relators' petition is 

Chief Justice 

We concur: 

Hon. Gordon R. Bennett, District 

Judge, sitting in place of Mr. 

Justice Gene B. Daly. 

................................ 

Hon. W. W. Lessley, District 

Judge, sitting in place of Mr. 

Justice John C. Sheehy. 

The Honorable W. W. Lessley, District Judge, sitting in place of 

Mr. Justice John C. Sheehy, concurs and will sign this opinion 

the next time he is in Helena.