No. 87-522 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

ANTHONY W. KENDALL, 

Plaintiff and Appellant, 

THE STATE OF MONTANA, and the UNIVERSITY 

OF MONTANA, and CARROL KRAUSE, Commissioner 

of Higher Education, and JAMES V. KOCH, as 

President of the University of Montana, 

Defendants and Respondents. 

APPEAL FROM: 

$&-L dL District Court of the nth Judicial District, 

In and for the County of -Caxbon,$#~cm&'I 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Anthony W. Kendall, Pro Se, Red Lodge, Montana 

For Respondent : 

LeRoy H. Schramrn, Montana University System, Helena, 

Montana 

Submitted on Briefs: March 3, 1988 

Decided: April 5, 1988 

Filed: 'APR 5 - 19BI 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The District Court for the Thirteenth Judicial District, 

Carbon County, granted defendants' motion for change of venue 

to Missoula County. We reverse and remand. 

The issue is whether venue for this action against the 

State of Montana and the University of Montana is properly 

found in Carbon County, where the plaintiff resides. 

Plaintiff Mr. Kendall attended the defendants' law 

school in Missoula, Montana, from 1982 to 1985. He paid, 

under protest, certain required fees for attendance at the 

school. He believes these fees were collected in violation 

of $ 10-2-311, MCA. That statute grants free fees and tuition to all honorably discharged persons who served with the 

United States forces in any of its wars and who were bona 

fide residents of Montana when they entered the service. Mr. 

Kendall has negotiated the return of all but approximately 

$1,000 of the amount he paid to the University and brings 

this action to recover the remaining amount. 

Mr. Kendall is now a resident of Red Lodge, Carbon 

County, Montana. He brought this suit in that county under 

5 25-2-126 (I), MCA: 

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 University of Montana moved for a change of venue to 

Missoula County. In granting the motion, the District Court 

made the following analysis: 

Defendants have presented convincing evidence that 

this Court should consider the University System a 

separate entity from the State of Montana for the 

purpose of determining venue. This being the case, 

it is clear that the proper place of venue is 
Missoula County. The contracts between the parties 

were entered into in Missoula County, the benefits 

of the contracts were received in that County, and 

the University is located in Missoula County. 

From that order, Mr. Kendall appeals. 

Is venue for this action against the State of Montana 

and the University of Montana properly found in Carbon County, where the plaintiff resides? 

The general rule is that the proper place for trial of a 

civil action is the county in which the defendant resides. 

Section 25-2-118, MCA. However, there are numerous exceptions to this rule, including the exception in 5 25-2-126(1), 

MCA, for actions in which the State is defendant. The University argues that § 25-2-126(1), MCA, means that a resident 

of the State of Montana may sue the State in the county where 

- he resided ---- at the time the cause - of action accrued. It 

therefore asserts that the proper place for trial of this 

action under this statute is Missoula, where Mr. Kendall 

resided as a student. 

Since the words "when the cause of action accrued" are 

absent from § 25-2-126 (1) , MCA, we look to the purpose of the 

statute for guidance on whether they should be implied. This 

Court has stated that the purpose of this statute is to 

afford citizens a practical and inexpensive forum for suits 

against the State and that such statutes are to be liberally 

construed in favor of private litigants. Petersen v. Tucker 

(Mont. 1987), 742 P.2d 483, 484, 44 St.Rep. 1625, 1627-28. 

The implied language suggested by the University would frustrate both of these principles. We decline to read into the 

statute the limitation suggested by the University. 

The University next argues that there is no plain cause 

of action against the State in this matter. That argument 

goes, as Mr. Kendall states, to the heart of his complaint. 

Whether the State is properly a party will not be considered 

by this Court on an appeal of a motion for change of venue. 
Petersen, 742 P.2d at 484. The University's related argument 

that it may be sued separately from the State is irrelevant 

as long as the State remains in the lawsuit. Under 

S 25-2-117, MCA, a county which is a proper place of trial 

for any one of the defendants is proper for all defendants, 

subject to the court's power to order separate trials. 

The University's third argument is based on Mr. Kendall's failure to allege in his complaint that he resides in 

Carbon County. The University cites the rule that the right 

of a defendant to a change of venue is determined by the 

condition of the pleadings as they exist at the time the 

defendant makes its appearance in the case. Johnson v. Clark 

(1957), 131 Mont. 454, 460-61, 311 P.2d 772, 776. Mr. Kendall signed the complaint "A. W. Kendall, P.O. Box 67, Red 

Lodge, Montana 59068." His affidavit that he had resided in 

Carbon County since October 1985 was before the court when it 

ruled on the change of venue motion. The court, in its 

order, found that Mr. Kendall is a resident of Carbon County. 

We conclude that the failure of the complaint to state in its 

body that Mr. Kendall is a Carbon County resident is not 

fatal. 

We hold that under the plain meaning of S 25-2-126 (1) , 

MCA, Carbon County, the county of Mr. Kendall's residence, is 

a proper venue for this action. We reverse the order granting change of venue and remand this cause to the District 

Court for the Thirteenth Judicial District for further 

proceedings. 

We Concur: