There can be no doubt but that plaintiff's action is one sounding in tort. That being so, the proper county for the trial of the action is the county in which the tort was committed, and it was the defendants' unquestioned right to have the case tried in that county. (Sec. 9096, Rev. Codes; Johnson v. Crick,95 Mont. 388, 26 P.2d 359; State ex rel Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 P. 1030; Dryer v.Director General of Railroads, 66 Mont. 298, 213 P. 210;O'Hanion v. Great Northern Railway Co., 76 Mont. 128,245 P. 518; Stewart v. First National Bank and Trust Co.,93 Mont. 39, 18 P.2d 801.)
No answer had been filed in this case when the defendants' demand and motion for change of venue were filed and acted upon by the court. Under such circumstances the motion cannot be resisted on the ground of the convenience of witnesses. (Archer v. Archer, 106 Mont. 116, 75 P.2d 783; Dawson v.Dawson, 92 Mont. 46, 10 P.2d 381.)
Respondent contends that the order denying appellants motion for change of venue is not an appealable order. This court in the following cases recognizes that an order denying a motion for change of venue is an appealable order and that the proper remedy is by appeal. (Johnson v. Crick, 95 Mont. 388,26 P.2d 359; Enos v. American Surety Co., 95 Mont. 588,28 P.2d 197; Atkinson v. Bonners Ferry Lbr. Co., 74 Mont. 393,240 P. 823; Archer v. Archer, 106 Mont. 116, 75 P.2d 783;Great Northern Ry. Co. v. Hatch, 98 Mont. 269,38 P.2d 976; Stewart v. First National Bank, 93 Mont. 390, 18 P.2d 801; Hanlon v. Great Northern Ry. Co., 83 Mont. 15,268 P. 547; Kalberg v. Grenier, 91 Mont. 509, 8 P.2d 799;Dryer v. Director General of Railroads, 66 Mont. 298,213 P. 210; see, also, sec. 9732, Rev. Codes. Respondent concedes the action to be one in tort. Appellants cite section 9096, Revised Codes, as authority. Respondent concedes *Page 484 applicability of this section. Appellants, however, skip the tenor of the last sentence of section 9096: "Actions for tort may be tried in the County where the tort is committed, subject, however, to the power of the Court to change the place of trial as provided in this code." Appellants again miss the force of section 9098, which provides the ground work for the court's exercising discretion upon invoking its power to change the place of trial. The conclusions of the court in the case at bar it seems are sanctioned by the provisions of said section.
Residence is not a determining factor in changing the place of trial in tort actions, but may be coupled with other facts or matters, such as convenience of witnesses, promotion of the ends of justice, financial ability of the plaintiff to meet the obligations resulting from a change in place of trial.
Further, the order shown appealed by the appellants is not an appealable order. Respondent refers to the case of State ex relInterstate Lumber Co. v. District Court, 54 Mont. 602,172 P. 1030. Appellants' remedy appears to be by an application for supervisory control if we follow the authority of State ex relInterstate Lumber Co. v. District Court supra. Appellants further cite case of Dryer v. Director General of Railroads,66 Mont, 298, 213 P. 210. That appeal was from a judgment and holds squarely with respondent's contention that the place of trial of a tort action is subject to the power of the court to change.
Appellants contend the motion for change of venue cannot be resisted before answer is filed, and cite two Montana decisions as authority. These decisions deal with divorce actions, — the case at bar with a tort action. In divorce actions, the court is without discretion to consider residence of parties litigant, convenience of witnesses, promotion of ends of justice, and financial ability of plaintiff. The discretion which is allowed in tort actions appears to be denied in divorce actions, that being the character of the actions cited by appellants.
This court will not reverse the lower court unless an abuse *Page 485 of discretion plainly appears. (Atkinson v. Bonners FerryLumber Co., 74 Mont. 393, 240 P. 823; Torstenson v. Ind.Publishing Co., 86 Mont. 163, 282 P. 861; Conway v.Fabian, 103 Mont. 574, 63 P.2d 1022; sec. 9096 Rev. Codes.)
The trial court was justified in exercising its discretion upon the following propositions: Residence of plaintiff and convenience of his witnesses; promotion of ends of justice; plaintiff's money paucity; abandonment of suit by plaintiff if not tried in Missoula county. Plaintiff sued defendants in Missoula county for damages alleged to have resulted from an automobile accident in Lake county, two miles from Polson, the county seat. The defendants applied for a change of venue to the latter county. There is no contention that their application was in any way insufficient, but although no answer had been filed plaintiff opposed it for the reasons "that convenience of witnesses of plaintiff, his counsel, and himself, and the ends of justice would be promoted" by conducting the trial in Missoula county; that the distance from Missoula to Polson is approximately eighty-five miles, "and witnesses, counsel and plaintiff would be required to travel that distance and consume unnecessarily the time in making the trip;" that it "would entail financial burden unable to be carried by plaintiff and [he] would be required to abandon his suit," and the change of venue would impose upon plaintiff "an unduly heavy burden if he is at all able to meet the obligations" resulting therefrom.
No affidavit was filed by plaintiff in support of his objections to the change of venue, but at the hearing his attorney was sworn and testified that plaintiff expected to call as witnesses six persons besides himself — a doctor, a nurse, two automobile mechanics and two others, all of whom were residents of Missoula county. No direct testimony was offered as to plaintiff's financial means or as to the burden upon him of the change *Page 486 of venue. In cross-examination the witness admitted that there was at least one other occupant of the car at the time of the accident, who resided at Ronan in Lake county; that after the accident plaintiff had consulted a doctor at Ronan; that before the accident the parties had stopped at Polson, but that he did not know whether witnesses there would be called on defendants' behalf as to what the parties did at Polson immediately before the accident; that the car was taken to Polson immediately after the accident, and that persons who took charge of it and examined it might be called by defendants but not by plaintiff; that three of the persons named by him as plaintiff's witnesses were auto mechanics or would testify concerning the damage to plaintiff's car; that it was only about a two hours' drive over a good highway from Missoula to Polson; that there was a regular bus line between the two cities, and that both the witness and plaintiff owned and drove cars; that plaintiff had been steadily employed for a number of years, except while disabled after the accident, and that at the time of the hearing he was earning about $150 per month. In response to the question whether he wanted the court to understand that all of the witnesses to this case resided in Missoula county, the witness stated that he had referred only to plaintiff's witnesses and was not concerned with those of defendants. There being no showing that an undue or impossible financial burden will be imposed upon plaintiff by a change of venue, we need not here consider the pertinence or availability of any objection except that of the convenience of witnesses.
Section 9096, Revised Codes, provides in part: "Actions upon[1-3] contracts may be tried in the county in which the contract was to be performed, and actions for torts in the county where the tort was committed; subject, however, to the power of the court to change the place of trial as provided in this code."
Section 9098 provides:
"The court or judge must, on motion, change the place of trial in the following cases: *Page 487
"1. When the county designated in the complaint is not the proper county.
"2. When there is reason to believe that an impartial trial cannot be had therein.
"3. When the convenience of witnesses and the ends of justice would be promoted by the change.
"4. When, from any cause, the judge is disqualified from acting; * * *."
It is manifest that under section 9096 Missoula county is not, and Lake county is, the proper county for the trial of this tort action, and that under subdivision 1 of section 9098 the defendants are entitled to an order transferring the action to Lake county. This is true even though under the final clause of section 9096 the venue in Lake county will be "subject, however, to the power of the court to change the place of trial as provided in this code", which necessarily refers to the last three subdivisions of section 9098.
It should be noted (1) that the provisions of those last three subdivisions authorize the change of venue from one county to another; (2) that they were not stated in the statute as grounds for denial of a removal to the proper county under subdivision 1; (3) that the third subdivision relates to "the convenience of witnesses and the ends of justice," and not merely to the convenience of plaintiff's witnesses, and the ends of justice from plaintiff's point of view; and (4) that the convenience of witnesses cannot be invoked even to authorize a change of venue from the county where the action is pending, until after the answer has been filed (Wallace v. Owsley, 11 Mont. 219,27 P. 790; Dawson v. Dawson, 92 Mont. 46, 10 P.2d 381;Archer v. Archer, 106 Mont. 116, 75 P.2d 783), since the court cannot until then determine the issues or consider the materiality of the witnesses in question.
With respect to the defendants' rights to have the cause removed to the proper county under subdivision 1 of section 9098, it is immaterial that the court of the proper county might thereafter, *Page 488 in its reasonable discretion, order the cause transferred back to Missoula county under subdivision 2, 3 or 4 of that section; for the parties are entitled to have each application for a change of venue considered upon its own merits, with reference to the condition of the cause as then existing, and by the proper court. It was therefore held in Wallace v. Owsley, supra, that it was error for the court of the county where the action was filed to deny a change of venue to the proper county, upon plaintiff's objection prior to answer, that the convenience of witnesses would be promoted by trial in the first county.
Thus upon this record, whether or not it would have been an abuse of discretion for the judge, if sitting in the court of Lake county, to grant a change of venue to Missoula county because of the convenience of witnesses, it was obviously an error for the Missoula county court to deny defendants' application for a change of venue to Lake county, which is the proper place for the trial of this tort action.
The order appealed from is therefore reversed.
ASSOCIATE JUSTICES ANDERSON, MORRIS and ADAIR, concur.
Rehearing denied June 5, 1943.