No. 85-387 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

LARRY J. WEISS, an incompetent person, by and through his duly appointed conservator, DEBORAHA. WEISS; JESSICA I. WEISS and KRISTIE L. WEISS, minors, 

### by and through theirmother and natural parent DEBORAHA. WEISS; and DEBORAHA. WEISS, individually, Plaintiffs and Respondents,

THE STATE OF MONTANA; THEMONTANA DEPARTMENT OF HIGHWAYS; GLACIER COUNTY; and BILL BIG SPRING, FRED R. JOHNSON,and DON KOEPKE, in their official capacity as GLACIER COUNTY COMMISSIONERS;and JOHN DOES 1--10, Defendants and Appellants.

APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Thomas Olson, Judgepresiding. COUNSEL OF RECORD: ForAppellant: Jardine,Stephenson,Blewett & Weaver; William D. Jacobson,Great Falls,Montana Kirwan & Barrett; Steve Barrett, Bozeman,Montana For Respondent: Goetz,Madden & Dunn;William Madden, Bozeman, Montana Regnier, Lewis,Boland & Roberts; JamesM. Regnier, Great Falls,Montana

Filed.: Submitted on Briefs: Oct. 31, 1985 Decided: January 16, 1986 

## JAN161986

...- 

### fib ClerkMr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court. Defendants Glacier County and Glacier County Commissioners appeal the June 12, 1985, order of the Eighteenth Judicial District Court denying defendants' motion for change ofvenue. We affirm. On December 12, 1981,plaintiff Larry Weisswas severely injured in a one car roll-over accident on Reagan Road in Glacier County, Montana, and rendered mentally incompetent. A complaint was filed by Deborah Weiss, Larry's wife, alleging negligence in the design, construction and maintenance of the road. The named defendants were the Sta.te of Montana, the Montana Department of Highways, Glacier County and its county commissioners in their official capacity, and other unknown defendants potentially liable to plaintiffs. The complaint was filed on December 11, 1-984, in Gallatin County, the plaintiffs

### ' pla.ce of residence. On December 31, 1984, defendants Glacier County and Glacier County Commissioners filed a motion for change of venue from Gallatin County to Glacier County, asserting Glacier County

was the proper venue because the alleged tort occurred there and 5 25-2-106, MCA (1983), requires an action aga.inst a county or its commissioners to be brought in such county. The district judge denied the motion, reasoning that venue

was proper a.s to the State defenda.nts therefore venue was proper as to all defendants. On appeal, the sole issue is whether the District Court erred in ruling that Glacier County and its commissioners could be sued in Gallatin County. Plaintiffs assert that the 1985 amendments to the venue provisions of the Montana Code, effective October 1, 1985, apply to this appeal. We agree.Section 1-2-109, MCA, provides: "No law contained in any of the code or other statutes of Montana is retroactive unless expressly so declared." However, a law is not deemed retroactiveunless it takes away vested rights acquired und-er existing laws, or creates new duties or attaches a new disability in respect to transactions already past. Butte & Superior Mining Co. v. McIntyre (1924), 71 Mont. 254, 263, 229 P.2d 730, 733. This Court has previously held that newly-amended statutes which relate only to procedural matters and do not affect substantive rights of the parties do not fall within the scope of S 1-2-109, MCA. See e.g., Castles v. State (1980), 187Mont. 356, 609 P.2d 1223; State

ex rel. Johnson v. District Court (1966)

## , 148 Mont. 22, 417 P.2d 109. A statutory change in venue provisions is wholly proced-uralandmay be applied topending cases. Denver & Rio Grande Western Railroad Co. v. Brotherhood of Railroad Trainmen (1967), 387 U.S. 556, 87 S.Ct. 1746, 18L.Ed.2d 954. We find that the 1985 amendments to the venue provisions of the Montana Code are applicable to this case. Three sections of the venue provisions in the Montana Code are implicated by thepresent case: 25-2-117. Multiple defendants. If there are two ormore defendants 

### in an action, a county that is a proper place of trial for any defendant isproper for all defendants, subject to the power of the court to order separate trials under Rule 42(b) of theMontana Rules of Civil Procedure. If an action with two or more defendants isbrought in a county that isnot a proper place of trial for any of the defendants, any defendantmay make amotion for change ofplace of trial to any countywhich is a proper place of trial. 25-2-125. Against public officers or their agents. Theproper place of trial for an action against a public officer orperson specially appointed to executehis duties for an act doneby him invirtue ofhis office or against apersonwho,by his command or in his 

### aid.,does anything touching the duties of such officer is the countywhere the cause or some part thereof arose. 25-2-126. Against state, county,and political subdivision. (1) Theproper place of trial for anaction against the state is in the county inwhich the claim arose or in Lewis and Clark County. In an action broughtby a residentof the state,the county of his residence is also aproper place of trial.

(2) Theproper place of trial for an action against a county is that county unless such action is brought by a county, inwhich case any county not a party thereto is also a proper place of trial.

(3) Theproper place of trial for an action against apolitical subdivision is in the county in which the claim arose or in any countywhere the political subdivision is located. Defendants assert that S$ 25-2-125 and -126(2), VCA, require the action to be brought in Glacier County as that is where the alleged tort occurred,and that is the location of the county being sued. Plaintiffs assert that 5. 25-2-117, MCA, is controlling,and that where venue isproper as to the State, venue is also proper for Glacier County and its commissioners. We agree with plaintiffs' interpretation of the venue provisions. The 1985 amendments to the venue provisions eliminated

use of the words "may," "shall," or "must,"which had spawned endless litigation, and inserted the term "the proper place of trial" to clarify the venue statutes. See Exhibit No. 1, Senate Judiciary Committee Minutes, January 22, 1985. Section 25-2-117, MCA, concerning proper venue for multiple defendants, is new to the Montana Code. The explanatory comment to this sectionprepared by the Montana SupremeCourt Commission on the Rules of Evidence reads inpart: Thisproposed sectiondoes not change existing law or establish any newprinciple. Like the other new provisions it simply tries to codify existing case law (although, in this instance, cases are neither plentiful nor clear-cut) so that all the fundamental principles will be gathered together in one place and stated asplainly aspossible. Id. 

### We believe that $j25-2-117,MCA, 

### is intended to apply to 

### - all venue provisions, including the provisions relating to suits against countiesand public officials.Previously, this Court has held that the venue statute for suits against counties, formerly S 2-9-312 (2)

## , MCA, does not absolutely bar a private litigant from suing a county in

a different county. InHutchinson v. Moran (Mont. 1983), 673 P.2d 818, 40 St.Rep. 2081; and State ex rel. Montana Deaconess Hospital v. Park County (1963)

## , 142Mont. 26, 381 P.2d 297, we held that where two counties are necessary parties to an action a plaintiff may elect to file suit in either county, and neither county has grounds to object to

venue. An analogous situationispresent inthe case atbar. We find that the districtjudge's denial of change of venue is consistent with S 25-2-117, MCA, which states that an actionmay be brought inany county where venue isproper and other defendants joined though venue otherwisewould not 1-ie against those defendants. Affirmed.

We concur: