This is an appeal from an order denying a change of venue. *Page 420 Plaintiff's complaint was filed in Lake county and alleged that defendant is indebted to plaintiff upon an account for work, labor and services rendered by plaintiff to defendant as a licensed and bonded realtor and for which defendant agreed to pay. The services, it is alleged, were rendered in the sale for $16,000 of certain real estate in Lake county at the regular realtor's commission of 5% of the sale price.
The summons was served upon defendant in Stillwater county. A writ of attachment was issued and levied upon a bank account in Lake county and upon another bank account in Stillwater county. At the time of filing a general demurrer defendant made demand for change of venue and in support thereof made affidavit "that at the time of the commencement of this action he was and now is a bona fide resident of the Town of Columbus, Stillwater county, Montana" and that summons was served upon him there and not elsewhere.
Before the motion for change of venue came on for hearing, plaintiff filed an affidavit on April 14, 1944, reciting in substance that the contract upon which the action is based "was agreed to be and was to be performed at Ronan, Lake county," and that defendant was to pay plaintiff there; that the property which was sold was in that county and that the contract between the parties was made there; that on the 28th day of February, 1944, defendant lived and made his home for himself and family at Ronan and "that he has not as yet established a residence at Columbus"; that the witnesses reside in Lake county, and, hence, that the convenience of the parties would be promoted by having the trial in Lake county; that plaintiff resides in Lake county and that the contract was there breached. Defendant moved to strike the affidavit of plaintiff from the files. The motion to strike was denied as well as the motion for change of venue.
Defendant contends that the court erred in not sustaining his motion to strike plaintiff's affidavit from the files.
We find it unnecessary to consider the propriety of the court's action with respect to the motion to strike. It is our *Page 421 view that in this particular case the same result would have to be reached even though the affidavit of plaintiff be stricken from the files.
Section 9096, after providing that actions shall be tried in the county in which defendant resides, contains this sentence: "Actions upon contracts may be tried in the county in which the contract was to be performed, * * *."
This court has held that the burden is upon the party moving[1] for a change of venue to disclose the facts which entitle him to the change. Courtney v. Gordon, 74 Mont. 408,241 P. 233. In speaking of section 9096, this court, in State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602,172 P. 1030, 1031, said: "The first sentence of this section is general in its terms, and but for the last sentence in it would apply to any action whatsoever for a cause other than one of those enumerated in some one of the preceding sections. The place of trial is therein made to depend upon the residence or whereabouts of the defendant at the time the action is commenced. The last sentence, however, excepts out of the application of this general provision actions upon contract and actions for torts, and requires the place of trial in these cases to be determined by considerations wholly apart from the residence or whereabouts of the defendant. In the one case, the place of trial is determined by an answer to the inquiry, Where was the contract to be performed? and in the other, Where was the tort committed?"
The ruling in the Interstate Lumber Company case, as to the effect of the last sentence in section 9096, Revised Codes, has been followed in all subsequent decisions by this court since that case was handed down in 1918. Dryer v. Director General of Railroads, 66 Mont. 298, 213 P. 210; Woodward v. Melton,58 Mont. 594, 194 P. 154; Feldman v. Security State Bank, 62 Mont. 330,206 P. 425; Maio v. Greene, 114 Mont. 481,137 P.2d 670. However, it developed when the case at bar was in conference that there is a decided conflict of views among the members of this court as to *Page 422 whether or not the special concurring opinion of the writer in the case of Hardenburgh v. Hardenburgh, 115 Mont. 469, 146 P.2d 151, was intended, or could be reasonably construed, to concur in that part of the majority opinion in the Hardenburgh case which expressly overruled the Interstate Lumber Company case relative to the construction given to section 9096, supra, relative to the question of venue. Under the circumstances I shall pause long enough to place that question at rest before proceeding further with the case at bar.
What is said in the special concurring opinion in the Hardenburgh case speaks for itself, and goes no further than to concur with the majority in holding that the venue of the action was properly determined to be in Missoula county. In the opinion of the writer a special concurring opinion applies only to the determinative question involved in the particular controversy and that was the sole and only office the special concurring opinion in the Hardenburgh case was intended to perform. In the opinion of the writer the Interstate Lumber case remains the leading case on the question of venue in this jurisdiction, and correctly construes section 9096, Revised Codes, as to that question.
In the later case of State ex rel. Bonners Ferry Lumber Co. v. District Court, 69 Mont. 436, 222 P. 1050, the opinion in the Interstate Lumber Co. case was severely criticised by Justice Holloway, who concurred in that opinion, but such criticism was directed to what Justice Holloway obviously believed to be the impropriety of this court's assuming jurisdiction in a special proceeding to determine a question of venue. Obviously that question did not occur to the justice at the time he concurred in the Interstate Lumber Company case. The special concurring opinion in the Hardenburgh case is not to be construed as overruling the Interstate Lumber Company case in any particular whatever.
Proceeding now with the case at bar, in order for defendant to[2] show facts entitling him, as of right, to a change of venue to Stillwater county, it was incumbent upon him to *Page 423 show that the contract sued on was not to be performed in Lake county where the action was commenced.
Since defendant in this action did not show sufficient facts to establish that Lake county was not a proper county for the venue of the action, plaintiff was not obliged to do anything more than stand upon the lack of showing made by defendant.
The order denying the motion for change of venue is affirmed.
Mr. Justice Johnson, and Associate Justice Cheadle, concur.