No. 83-83 IN THE SUPREMECOURT OF THE STATEOF MONTANA 1983

BURTON HUTCHINSON, Plaintiff and Respondent,

DUANEMORAN, HAROLD R. DeP4ERS and JEFFERSON COUNTY, Defendants and Appellants.

APPEAL FROM: District Court of the Second Judicial District, In and for the County of SilverBow, The IlonorableMark P. Sullivan,Judgepresiding,

COUNSEL OF ,WCORD: ForAppellant: Richard E. Gillespie;Keller,Reynolds,Drake, Sternhagen & Johnson,Helena,Montana

For Respondent: JamesP. Harrington, Butte,Montana

Submitted on Briefs: October 7,1983 Decided: December 29, 1983

Filed: 

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ClerkMr. Justice John. C. Sheehy delivered the Opinion of the Court.
This case comes on appeal from an order of the District Court, Second Judicial District, Silver Bow County, denying defendant's motion fora changeofvenue. We affirm. Sometime during 1981, Silver Row County erroneously reissued the registration number of plaintiff's vehicle, a 1973 Torino, to an automobile belonging to one Paul Miller. Miller's car, a Toyota, was subsequently stolen and Miller reported that fact to the Butte-Silver Bow County Sheriff. The vehicle was later recovered, but Silver Bow County officials failed to reflect that facton their records. Later, on May 31, 1981, codefendant Duane Moran, a Jefferson County deputy sheriff, was patrolling the main street in Basin, Jefferson County, Montana. Moran saw plaintiff's parked vehicle with the same 1-icensenumber as that registered to Miller's Toyota. Moran requested status information from the Jefferson County Sheriff's Office which later confirmed, after inquiry to Silver Bow County, that the license number matched the car registration number reported stolen. Plaintiff was arrested because he could notproduce his vehicle registration certificate. Later that day, plaintiff was released when the Jefferson County authorities discovered the error. Plaintiff brought suit against Silver Bow County and Jefferson County and their agents in Silver Row District Court seeking damages for several constitutional violations, negl-igence,false arrest, false imprisonment and invasion of privacy. On August 31r1982,defendant Jefferson Countymoved for a change of venue to Jefferson County as to all the claimsagainst it and its agents. The District Court denied the motion and this appeal followed. This Court has decided venue in earlier cases in which counties have been named as defendants. In Good Roads Machinery Co. v. Broadwater County (1933), 94 Mont. 68, 70-71, 20 P.2d 834, 835, we held that the "may"provision in section 9095, R.C.M. 1921 (now section 25-2-106, MCA), constituted a statutory grant of permission to sue a county, and that a plaint-iffwas limited to bringing the suit in the defendant county. In State ex rel. Montana Deaconess Hosp.

v. Park County (1963), 1.42 EIont. 26, 381 P.2d 297,we found an exception to the rule where two counties were necessary parties to the action and the suit had been brought in the District Court of one of the counti-es. In State ex rel. Kesterson v. District Court (Mont. l980), 614 P.2d 1050, 37 St.Rep. 1278,

### we held where the complaint did not show that each of the two counties sued was a necessary party to the action, the counties should he sued where they are located. The holdings in those cases must 

### he re-examined in the light of Art. 11, § 18, 1972Mont. Const., which makes state and political subdivisions subject to suit for injury to person or property except asmay be specifically provided by two-thirds vote of each house of the legislature, and the further provisions for venue of county defendants contained in section 2-9-312, MCA, first adopted in 1973. Good Roads Machinery Co., above,was decided before the adoption of the constitutional provision here referred to and so its holding that the venue statute, section 25-2-106, MCA (formerly section 93-2903, R.C.M. 1-947) 

## , consti-tuted a grant of permission to sue a countyno longerholds. Theright to sue county now exists by virtue of constitutional authority,supplemented by legislati~reaction. The venue of actions against counties isnow governed by the provisions of section 2-9-312 (2)

## ,Il'ICA,as fo3lows: 

### "(2) Actions against apolitical subdivision shall he brought in the county in which the cause of action arose or in any county where the political subdivision is located." In section 2-9-101(l)(e)

## ,MCA, a county is included in the definition of a "politicalsubdivision." Section 2-9-102, MCA, makes every governmental entity subjectto liability for its torts and those of its employees except as specifically provided otherwise by the legislature underArt. 11, § 18, 1972Mont. Const. Jurisdiction of actions brought against a state governmental entity is given to the d-istrict courts in section 2-9-311,MCA, and in that section it is alsoprovided that such actions shall be governed by the Montana Rules of Civil Procedure insofar as they are consistent with the statutes relating to suits against political subdivisions. Since by statute the Montana Rules of Civil Procedure apply,we find in Rule 19(a), that a "person [whichincludes in this case a county1 who is subject to service of process shall be joined as a pa.rty in the action if (1) in his absence complete relief cannot be accorded among those a1rea.d~ parties 

# . .." However, Rule 19(a)

## , also provides that 

### "[i]f the joined party objects tovenue and his joinder would render the venue of the action improper, he shall be dismissed from the action." It thus a.ppea.rsthat ifwe applied theprovisions of the

venue section, section 2-9-312 (2)

## , supra, and Rule 19(a3

## , strictly, our holding should.be that where two counties are sued in one action, and both are necessa-ryparties to theaction,nevertheless, one of t.hemmust be dismissed from the action if it raises an objection as to venue. That is what has occurred here. Such a result, however,would appear to

us to be obnoxious and not within.the contemplation of the framers of either the statutes permitting suits against governmental subdivisions or the Montana Rules of Civil Procedure. In this case, for example, if Jefferson County were to be dismissed from the Silver Row County action, the provisions of Rule 19(b)

### , Montana Rules of Civil Procedure could very well come into play. Under Rule 19(b), if the court determined that in equity and good conscience the action should not proceed with the remai-ningcounty before it, that action would be dismissed because the absent county would be regarded a.s indispensable. On the other hand, if the plaintiff commenced an action against and in Jefferson County and named Silver Bow County as an additional defendant,the sameresu1.twould eventuallyobtain. Thus the plaintiff isplaced in an impossible situa.tionwhere there

are two indispensable parties either of which mav object to

venue and on strict a.pplicationof the rules and statutes, each would be entitled to either a change of venue or dismissal. In this situation,we advert to and adopt the reasoning of this Court in State ex rel. Monta.na Deaconess Hosp. v. Park County (1963), 1.42 Mont. 26, 28, 381 P.2d 297, 298, whereinwe said: "In the Good Roads Machinery Co. case, this Court held that the provisions of this statute should he strictly construed and that if an action against a countybrought in a county other than the one sued, the District Court would bewithout jurisdiction to try it. This interpretation is correct where only a single county is involved, but here we have asituationwhere two counties arenecessary parties defendant. Inouropinion, reason dictatesthatin such a situation either county would be a proper county in which to commence and prosecute the action and that relator may choose either of said counties in which to file its action and such county will then become the proper county for the trial thereof against both defendant counties." Because both counties in thiscase arenecessary parties to the action, and because Silver BOW County is a proper
venue for at least one of the defendant counties, we affirm the ord.er of the District Court in refusing togrant change of venue astoJefferson County and
Justice (1 i

WeConcur:

JusticesMr. Justice L.C. Gulbrandson dissenting. I respectfullydissent. The plaintiff's allegations against Silver Bow County state a claim based upon negligence while the allegations against Jefferson County charge false arrest, false imprisonment, assault and battery and several constitutional violations. This Court in State ex rel. Kesterson v. District Court (Mont. 1980), 614 P.2d 1050, lQ52, 37 St.Rep. 1278, 1280,stated: "In Deaconess Hospital, two counties disclaimed liability for one hospital payment for a welfare patient. Because it was necessary to determine which of the counties was the residence of the patient, and thus liable, both counties had to be joined as party defendants. This Court found that either countywould be aproper one inwhich to prosecute the action. Deaconess Hospital, supra, 142 Mont. at 27-28, 381P.2d at 298. "In this case, the complaint does not allege that either Missoula County or Lake County was the exclusive cause of one injury. Rather, the pleadings indicate that the plaintiffs could have been damaged by the actions of either or both counties acting separately. In such a situation both counties are not necessary parties to one action, and the counties should be sued where they are located." (emphasis supplied) Here, it appears that each county, for its separate acts under the pleading, could be found liable to the plaintiff. I would reverse and order that the action against Jefferson County and its officials be tried in Jefferson County.

I Justice