No. 83-83 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

BURTON HUTCHINSON, 

Plaintiff and Respondent, 

DUANE MORAN, HAROLD R. DeP4ERS and 

JEFFERSON COUNTY, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Ilonorable Mark P. Sullivan, Judge presiding, 

COUNSEL OF ,WCORD: 

For Appellant: 

Richard E. Gillespie; Keller, Reynolds, Drake, 

Sternhagen & Johnson, Helena, Montana 

For Respondent : 

James P. Harrington, Butte, Montana 

Submitted on Briefs: October 7, 1983 

Decided: December 29, 1983 

Filed: 3%&: 2 3 \983 

Clerk 
Mr. 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 for a change of venue. We affirm. 

Sometime during 1981, Si lver 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 fact on 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-icense number 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 not produce 

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 vi olations, 

negl-igence, false arrest, false imprisonment and invasion of 

privacy. 

On August 31r 1982, defendant Jefferson County moved for 

a change of venue to Jefferson County as to all the claims 
against 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-iff was 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, 1972 Mont. Const., which makes state 

and political subdivisions subject to suit for injury to 

person or property except as may 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 county no longer holds. The right to sue 

county now exists by virtue of constitutional authority, 
supplemented by legislati~re action. The venue of actions 

against counties is now governed by the provisions of section 

2-9-312 (2) , Il'ICA, as fo3 lows: 

" (2) Actions against a political 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 "political subdivision." 

Section 2-9-102, MCA, makes every governmental entity 

subject to liability for its torts and those of its employees 

except as specifically provided otherwise by the legislature 

under Art. 11, § 18, 1972 Mont. 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 also provided 

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 [which includes 

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 to venue and his joinder 

would render the venue of the action improper, he shall be 

dismissed from the action." 

It thus a.ppea.rs that if we applied the provisions 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-ry parties to the 
action, nevertheless, one of t.hem must 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-ning county 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 same resu1.t would eventually obtain. Thus the 

plaintiff is placed in an impossible situa.tion where there 

are two indispensable parties either of which mav object to 

venue and on strict a.pplication of 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, 

wherein we 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 

county brought in a county other than the one sued, 

the District Court would be without jurisdiction to 

try it. This interpretation is correct where only 

a single county is involved, but here we have a 
situation where two counties are necessary parties 

defendant. In our opinion, reason dictates that in 

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 this case are necessary 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 to grant change 

of venue as to Jefferson County and 

Justice (1 

i 

We Concur: 

Justices 
Mr. Justice L.C. Gulbrandson dissenting. 

I respectfully dissent. 

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 county would 

be a proper one in which to prosecute the 

action. Deaconess Hospital, supra, 142 

Mont. at 27-28, 381 P.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