NO. 87-206 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

JOHN L. PETERSEN and MONTANA OIL 

& MINERALS COR.PORATION, a Montana 

corporation, 

Plaintiffs and Respondents, 

-VSR. G. "RICK" TUCKER, DOUG JAMES, and 

ANDREA BENNETT, State Auditor, 

STATE OF MONTANA, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael J. Mulroney, Helena, Montana 

For Respondent: 

Karl J. Englund, Missoula, Montana 

William A. Rossbach, Missoula, Montana 

Submitted on Briefs: July 14, 1987 

Decided: September 17, 1987 

Filed: SEP 1 7 1w 

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25kL *0- 

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

Court. 

Defendants appeal from an order of the District Court, 

Fourth Judicial District, Missoula County, denying their 

motion for a change of venue from the District Court in 

Missoula County to Lewis and Clark County. 

The issue on appeal is whether venue was properly found 

in Missoula County. 

This case arises out of a cease and desist order issued 

to the plaintiffs by the State Auditor's office, Securities 

Department. The plaintiffs allege that as a result of the 

cease and desist order being issued, they were the object of 

tortious conduct and that their civil rights were violated 

resulting in injury. 

Plaintiffs resided in Missoula County and the defendants 

resided in Lewis and Clark County at the time the order was 

issued. 

Plaintiffs brought this action against the defendants in 

Missoula County. Appellants filed a number of motions 

including a motion for change of venue to Lewis and Clark 

County, and a motion to dismiss the State as a party. On 

April 2, 1987, the District Court denied the defendants' 

motion for change of venue and did not rule on the motion to 

dismiss the State as a party. The defendants appeal from the 

District Court order denying their motion for change of 

venue. FJe find that the District Court was correct in its 

determination that venue was properly found in Missoula 

County. 

This Court has addressed the issue of venue on numerous 

occasions and the rules regarding venue are well settled and 
can be easily discerned by a quick review of the Montana 

statutes and Montana case law. 

Appellants maintain in their brief that venue should be 

changed as the county designated in the respondents 

complaint, Missoula County, is not the proper county. The 

right of the defendant to move for change of place of trial 

is found in S 25-2-114, MCA, which provides: 

Right of defendant --- to move for change of place of 

trial. If an action is brought in acounty not 

designated as the proper place of trial, a 

defendant may move for a change of place of trial 

to a designated county. 

Section 25-2-201, MCA, details when a change of venue is 

required: 

The 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; 

(2) When there is reason to believe that an 

impartial trial cannot be had therein; 

(3) When the convenience of witnesses and the 

ends of justice would be promoted by the change." 

Platt v. Sears, Roebuck & Co. (Mont. 1986), 721 P.2d 336, 43 

St.Rep. 1160. 

Appellants contend that venue should be changed to Lewis 

and Clark County as the general rule regarding venue is that 

venue is proper in the county where the defendants reside. 

Platt v. Sears, Roebuck & Co., supra. 

Although the appellants have correctly stated the 

general rule, as § 25-2-118, MCA, indicates, the code does 

not confer venue exclusively to the county of the defendants' 

residence. 
The statute controlling venue in actions against the 

state, including the instant case is S 25-2-126(1), MCA, 

which provides: 

The proper place of trial for an action against the 

state is in the county in which the claim arose or 

in Lewis and Clark County. In an action brought by 

a resident of the state, the county of his 

residence is also a proper place of trial. 

The appellants contend that the State is not a proper 

party to this action and as such the venue for this 

proceeding properly lies in Lewis and Clark County under 5 

25-2-118, and 25-2-122, and/or 25-2-125, MCA. Appellants 

assert that this Court should dismiss the State as a party in 

this action alleging that the question of venue would then 

have but one resolution, that being Lewis and Clark County. 

This Court will not address the issue of whether the 

State is a proper party in this action. We find the record 

clear on this point as the State is specifically named in the 

respondents' complaint as a party and has not been dismissed 

from the action. Venue must be determined on the basis of 

the complaint. Johnson v. Clark (1957), 131 Mont. 454, 461, 

311 P.2d 772, 776. Further, only the matter of venue can be 

disposed of by the reviewing court when dealing with an 

appeal from an order granting or denying venue. Conway v. 

Fabian (1936), 103 Mont. 574, 63 P.2d 1022. In Guthrie v. 

Montana Department of Health and Environmental Sciences 

(1977), 172 Mont. 142, 146, 561 P.2d 913, 915, and Ford v. 

Montana Department of Fish, Wildlife (Mont. 1984), 676 P.2d 

207, 209, 41 St.Rep. 220, 222, this Court cited with approval 

Regents of University of California v. Superior Court (Cal. 

1970), 476 P.2d 457, 461, in which the California Supreme 

Court held: 

The underlying purpose of statutory provisions as 

to venue for actions against State agencies is to 
afford the citizen a forum that is not so distant 

and remote that access to it is impractical and 

expensive. To that end, such provisions should be 

liberally construed in favor of the private 

litigant. 

This Court in Billings Associated Plumbing v. Emerson 

(1977), 172 Mont. 369, 372, 563 P.2d 1123, 1125, held that 

venue provisions relating to actions against state agencies 

should be liberally construed in favor of private litigants. 

Clearly in the instant case venue was properly found in 

Missoula County. The plaintiffs are residents of the State 

of Montana and the county of their residence is a proper 

venue $ 25-2-126(1), MCA; 25-2-115, MCA. As such the 

appellants have no right to have the venue changed under § 

25-2-201, MCA. The fact that venue would also be proper in 

Lewis and Clark County is of no import. In State v. Security 

State Bank (1979), 184 Mont. 461, 464, 603 P.2d 681, 683, 

this Court held where proper venue has been chosen: 

. . . [tlhe 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. 

Appellants point out that in McAlear v. Kasak (Mont. 1987), 

731 P.2d 908, 910, 44 St.Rep. 81, 83, this Court stated "[wle 

have never held that a plaintiff has an absolute choice of 

forum . . . where plaintiffs file the action in an improper 

county, the defendants may change venue to any proper 

county." However, once an action has been filed in a proper 

county the District Court cannot grant a motion to have it 

removed. Seifert v. Gehle (1958), 133 Mont. 320, 322, 323 

P.2d 269, 270. 

As we have previously stated, venue was properly found 

in Missoula County. The District Court was precluded from 
granting the defendants' motion for change of venue and acted 

appropriately in denying the motion. 

Affirmed. 

We Concur: 

Justice