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 

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Decided: ;kc ' 

Filed: <F:' - 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appeal is by the defendant Security State Bank from an 

order of the District Court denying defendant's motion for 

change of venue. 

The State of Montana, through its State Auditor, Sonny 

Omholt, brought a civil action in the District Court of the 

First Judicial District of the State of Montana in and for 

the County of Lewis and Clark, against Security State Bank 

of Plentywood, Montana. The State seeks to recover $5,482.26 

on behalf of the Public Employees' Retirement Board for retirement 

benefits paid out to "John E. Rucker" over a six year period. 

The benefits were paid in a series of 72 state warrants issued 

after Rucker's death. The appellant Bank presented the warrants 

for payment, and they were paid. The State's action is based 

on its claim that the warrants were wrongfully presented by 

the Bank. 

The Bank filed its motion for change of venue in astimely 

manner upon two grounds (1) that the defendant Bank resided 

in the County of Sheridan at the commencement of this action 

and continues to reside in said county and, (2) 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 order of the District Court denied the change of 

venue upon the first ground, and denied the motion on the second 

ground because it was prematurely brought, but without prejudice 

to a further motion based on the second ground. 

The Bank appeals the order of the District Court, and the 

issue before us is whether the venue of this action properly 
should have been transferred to the Fifteenth Judicial District 

Court for the County of Sheridan, based on the residency of 

the Bank. 

It is not disputed that the residence of the defendant 

Bank, though a corporation, is in Plentywood, located in Sheridan 

County. The general rule that a cause against a defendant should 

be tried in the county in which he resides is embodied in section 

25-2-108, MCA [formerly section 93-2904, R.C.M. 19471 which 

provides : 

"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 11 ... 

There is a special statute, however, which applies 

to suits by the State Auditor such as this one, which provides 

for trial in the District Court of Lewis and Clark County. 

That section is section 17-4-103(1), MCA [formerly section 

79-101 (12) , R.C.M. 19471 , which states: 

" (1) In his discretion it is the duty of the 

state auditor to examine the collection of moneys 

due the state and institute suits in its name for 

official delinquencies in relation to the assess 

ment, collection, and payment of the revenue and 

against persons who by any means have become 

possessed of public money or property and failed 

to pay over or deliver the same and against debtors 

of the state, of which suits the courts -- of the 

county in whichthe --- seat of government may be 

locatedhave jurisdiction, without regard -- to the 

residence -- of the defendants." (Emphasis added.) 

While the language of section 17-4-103(1), MCA, does 

not necessarily grant exclusive jurisdiction of such cases 

to the Lewis and Clark County District Court, there can be 

no doubt that under that statutory provision courts in that 

county are a proper venue for actions commenced by the State 

Auditor pursuant to section 17-4-103(1), MCA. If we assume 

that the District Court in the Fifteenth Judicial District 

in and for Sheridan County would also be a proper tribunal 

in which the State Auditor could commence an action against this 
defendant, under section 25-2-108, MCA, it is nevertheless 

the rule that if the county in which the action is brought 

and the one to which it is sought to have the action transferred 

are both proper counties, the action must stay where the 

complaint was filed. Shields v. Shields (1943), 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 

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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 

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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