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, DEBORAH A. WEISS; JESSICA 

I. WEISS and KRISTIE L. WEISS, minors, 

by and through their mother and natural 

parent DEBORAH A. WEISS; and DEBORAH A. 

WEISS, individually, 

Plaintiffs and Respondents, 

THE STATE OF MONTANA; THE MONTANA 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, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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; James M. Regnier, 

Great Falls, Montana 

Filed.: 

Submitted on Briefs: Oct. 31, 1985 

Decided: January 16, 1986 

JAN 1 6 1986 

.. .- 

fib 

Clerk 
Mr. 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 of venue. We affirm. 

On December 12, 1981, plaintiff Larry Weiss was 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 

retroactive unless 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), 187 Mont. 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-ural and may be applied to pending cases. Denver & Rio 

Grande Western Railroad Co. v. Brotherhood of Railroad 

Trainmen (1967), 387 U.S. 556, 87 S.Ct. 1746, 18 L.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 the present case: 

25-2-117. Multiple defendants. If there are two 

or more defendants in an action, a county that is a 

proper place of trial for any defendant is proper 

for all defendants, subject to the power of the 

court to order separate trials under Rule 42(b) of 

the Montana Rules of Civil Procedure. If an action 

with two or more defendants is brought in a county 

that is not a proper place of trial for any of the 

defendants, any defendant may make a motion for 

change of place of trial to any county which is a 

proper place of trial. 

25-2-125. Against public officers or their agents. 

The proper place of trial for an action against a 

public officer or person specially appointed to 

execute his duties for an act done by him in virtue 

of his office or against a person who, by his 

command or in his aid., does anything touching the 

duties of such officer is the county where the 

cause or some part thereof arose. 

25-2-126. Against state, county, and political 

subdivision. (1) 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. 

(2) The proper place of trial for an action 

against a county is that county unless such action 

is brought by a county, in which case any county 

not a party thereto is also a proper place of 

trial. 

(3) The proper place of trial for an action 

against a political subdivision is in the county in 

which the claim arose or in any county where 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 is proper 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 section prepared by the Montana Supreme Court 

Commission on the Rules of Evidence reads in part: 

This proposed section does not change existing law 

or establish any new principle. 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 as plainly as possible. 

- Id. We believe that $j 25-2-117, MCA, is intended to apply to 

all venue provisions, including the provisions relating to 

suits against counties and 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. In Hutchinson v. Moran (Mont. 1983), 673 

P.2d 818, 40 St.Rep. 2081; and State ex rel. Montana 

Deaconess Hospital v. Park County (1963) , 142 Mont. 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 situation is present in the case at bar. 

We find that the district judge's denial of change of venue 

is consistent with S 25-2-117, MCA, which states that an 

action may be brought in any county where venue is proper and 

other defendants joined though venue otherwise would not 1-ie 

against those defendants. 

Affirmed. 

We concur: