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 HOSPITALAND 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 JamesWalsh argued, Great Falls,Montana

Submitted: June 14, 1979 Decided

### AUji 

## 193Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. The DistrictCourt 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 firstmotion 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 thispecuniary interest precluded an impartial trial within the meaning of what is now section 25-2-201(2) MCA. Thismotion was never ruled upon. A new jurypanel was drawn on January 12, 1978 and on February 6, 25 days later,plaintiff filed a renewedmotion for

a venue change. Thismotion was substantially the same as the first one except it recited that 49 members of the new 51person panel were Liberty County taxpayers. On March 9,the District Court denied themotion. Trialbegan 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 theirpecuniary interest,county taxpayers are not qualified to be jurors in caseswhere 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), 142Mont. 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 shemight have had. Ledger v. McKenzie (1938), 107Mont. 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),61N.D. 744, 240 N.W. 867. Montana case law is contrary,Carter City v. Cambrian Corp. (1963), 143Mont. 193, 387 P.2d 904;Good Roads Machinery Co. v. Broadwater Co. (1933), 94Mont. 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 thatwhenever at some time more than 20 days after the last pleading has been filed an event occurswhich thereafter affords good cause to believe that an impartial trial cannot be had under ground 2 of said section 25-2-201, and competentproof is submitted to the court that such cause of impartiality did not exist within the 20-day period after the lastpleading was filed,the courtmay entertain a motion to change the place of trial under ground 2 of section 25-2-201within 20 days after that later event occurs.

### " Rule 12(b)(iii)

## ,M.R.Civ.P. Neither the firstmotion nor the renewed motion for change of venuewas made within 20 days after the answer orwithin 20 days after an event affording good cause tobelieve an impartial trial could not be had. Plaintiff argues that the event causing impartiality was the January 12jury panel selection. In thiscase neither the firstmotion nor therenewal motion for change of venue was timely. Plaintiff has acknowledged inher brief that the firstmotion for change of venue was not made within 20 days after the then existingjury panel was drawn. Thus the firstmotion 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. Thismotion was likewiseuntimely because it

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

(iii) 

# . Wehold that since both motions for change of venue were untimely; the District Court's denial of a change of place of trialwas correct. Affirmed.



## ............................... Chief Justice