No. 14309 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

MARILYN A. KEITH, Administratrix 

of the Estate of Lloyd D. Keith, 

deceased, 

Plaintiff and Appellant, 

LIBERTY COUNTY HOSPITAL and 

NURSING HOME, and LIBERTY COUNTY, 

a body politic and corporate, d/b/a 

LIBERTY COUNTY HOSPITAL AND NURSING 

HOME, 

Defendants and Respondents. 

Appeal from: District Court of the Twelfth Judicial District, 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellant: 

Dzivi, Conklin, Johnson & Nybo, Great Falls, Montana 

William P. Conklin argued, Great Falls, Montana 

For Respondents: 

Smith, Emrnons, Baillie and Walsh, Great Falls, Montana 

James Walsh argued, Great Falls, Montana 

Submitted: June 14, 1979 

Decided AU ji 193 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

The District Court of Liberty County denied plaintiff's 

motion for change of venue. Following a trial resulting in a 

jury verdict for defendant, plaintiff appeals from the order 

denying a change of venue. 

In June, 1975, plaintiff filed an action for damages 

arising out of the death of her husband. Defendants in the action 

were the Liberty County Hospital and Nursing Home and Liberty 

County. Plaintiff alleged that negligence on the part of the 

hospital caused her husband's death and sought to hold Liberty 

County, who operates the hospital, liable. 

More than two years later as the trial date approached, 

plaintiff filed her first motion for a change of place of trial. 

The grounds alleged were that 42 of the 48 members of the jury 

panel were county taxpayers who had a direct pecuniary interest 

in the outcome of the trial. As taxpayers, they would have to 

pay higher property taxes to cover any uninsured judgment in 

favor of plaintiff. Plaintiff claimed this pecuniary interest 

precluded an impartial trial within the meaning of what is now 

section 25-2-201(2) MCA. This motion was never ruled upon. 

A new jury panel was drawn on January 12, 1978 and on 

February 6, 25 days later, plaintiff filed a renewed motion for 

a venue change. This motion was substantially the same as the 

first one except it recited that 49 members of the new 51 person 

panel were Liberty County taxpayers. On March 9, the District 

Court denied the motion. Trial began on March 13, 1978 and resulted in a jury verdict for the Hospital. At no time during 

empanelment of the jury or during the courseof the trial did 

plaintiff challenge the panel or seek to have any juror disqualified because of county taxpayer status. 

In appealing, plaintiff contends that because of their 
pecuniary interest, county taxpayers are not qualified to be 

jurors in cases where the county is a party. By analogy, she 

asserts that the presence of a large number of county taxpayers 

on the jury panel is a ground for changing the place of trial. 

This Court has previously held that taxpayer status is 

not a ground for juror disqualification. School Dist. No. 1. v. 

Globe & Republic Ins. Co. (1963), 142 Mont. 220, 383 P.2d 482. 

Here, it is not necessary for us to reach this argument for in 

failing to challenge the panel or any juror for cause on the basis 

of taxpayer status, plaintiff waived any objections she might have 

had. Ledger v. McKenzie (1938), 107 Mont. 335, 340, 85 P.2d 352, 

353. 

Plaintiff has referred the Court to cases from other 

states which hold that where jurors are not disqualified because 

of their status as taxpayers, a motion for change of venue may 

nevertheless be granted. Olson v. City of Sioux Falls (1935), 

63 S.D. 563, 262 N.W. 85; Sheridan County v. Davis (1932), 61 N.D. 

744, 240 N.W. 867. Montana case law is contrary, Carter City v. 

Cambrian Corp. (1963), 143 Mont. 193, 387 P.2d 904; Good Roads 

Machinery Co. v. Broadwater Co. (1933), 94 Mont. 68, 20 P.2d 834. 

We hold that plaintiff waived her right to a change of 

place of trial in any event for failure to timely move therefor. 

"Any request for change in place of trial for grounds 

2 and 3 of section 25-2-201, Montana Code Annotated, 

must be presented by motion within 20 days after the 

answer to the complaint, or to the cross-claim where 

a cross-claim is filed, or the reply to any answer, 

in those cases in which a reply is authorized, has 

been filed; except that whenever at some time more 

than 20 days after the last pleading has been filed 

an event occurs which thereafter affords good cause 

to believe that an impartial trial cannot be had under 

ground 2 of said section 25-2-201, and competent proof 

is submitted to the court that such cause of impartiality did not exist within the 20-day period after 

the last pleading was filed, the court may entertain 

a motion to change the place of trial under ground 2 

of section 25-2-201 within 20 days after that later 

event occurs. " Rule 12 (b) (iii) , M. R.Civ.P. 

Neither the first motion nor the renewed motion for change of venue 
was made within 20 days after the answer or within 20 days 

after an event affording good cause to believe an impartial 

trial could not be had. Plaintiff argues that the event causing impartiality was the January 12 jury panel selection. 

In this case neither the first motion nor the renewal 

motion for change of venue was timely. Plaintiff has acknowledged 

in her brief that the first motion for change of venue was not 

made within 20 days after the then existing jury panel was drawn. 

Thus the first motion was untimely under Rule 12 (b) (iii) , M.R. 

Civ.P. The second jury panel was drawn on January 12, 1978. The 

second or renewed motion for change of venue was not made until 

February 6, 1978. This motion was likewise untimely because it 

was not made within the 20-day time limit specified in Rule 12(b) 

(iii) . 

We hold that since both motions for change of venue were 

untimely; the District Court's denial of a change of place of 

trial was correct. 

Affirmed. 

............................... Chief Justice