No. 8 9 - 2 8 9
IN THE SUPREME COURT OF THE STATE OF MONTANA I a
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CLIFFORD MELROE, m c) 3
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plaintiff and Respondent,
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TERESA M. DOYLE, CONNIE J. GRIFFIN,
STEVEN E. SCHEITLIN, SUSAN M. SCHEITLIN,
DANIEL J. SCHEITLIN, EDWARD E. SCHEITLIN,
JR., MICHAEL J. SCHEITLIN, and VAEDA G.
SCHEITLIN,
Defendants and Appellants.
APPEAL FROM: ~istrictCourt of the Second ~udicial~istrict,
In and for the County of Silver BOW,
The Honorable Mark ~ullivan,Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John H. ~ardine;~ardine& Grauman, Whitehall,
Montana
For Respondent :
~illiam M. Kebe, Jr. & Carol L. McGary; Johnson,
Skakles & Kebe, Butte, Montana
Submitted on Briefs: Aug. 17, 1 9 8 9
~ecided: November 7, 1989
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the
Court.
The defendants appeal from an order of the District
Court of the Second Judicial District, Silver Bow County,
denying their motion for change of venue. We affirm.
The sole issue raised on appeal is whether the District
Court erred in denying defendants1 motion to move the place
of trial from the county in which four of the eight
defendants resided to the county in which the contract relied
upon in the complaint was to be performed.
Plaintiff, Clifford Melroe, brought this action for
breach of contract and unjust enrichment in Silver Bow
County, the residence of four of the eight defendants. The
defendants moved for change of venue, claiming that Madison
County was the proper place for trial as it was the county in
which the contract was to be performed. The District Court
denied the motion. The defendants appealed.
The statute governing change of venue for contract
actions provides in pertinent part:
(1) The proper place of trial for actions upon
contracts is either:
(a) the county in which the defendants, or any of
them, reside at the commencement of the action; -
or
(b) the county in which the contract was to be
performed. (~mphasisadded.)
Section 25-2-121, MCA.
The statute reiterates the longstanding rule that, in
contract actions, the plaintiff may elect to bring suit in
either the county of the defendant1 residence or the county
s
of contract performance. Either county is the proper place
for trial.. When a suit may properly be commenced in more
than one county and the plaintiff files in one of the
p e r m i s s i b l e c o u n t i e s , t h e d e f e n d a n t may n o t change t h e venue
o f t h e a c t i o n t o a d i f f e r e n t county, even i f t h e t h e county
p r e f e r r e d by t h e d e f e n d a n t i s a l s o a p r o p e r p l a c e f o r t r i a l .
S e c t i o n 25-2-115, MCA. See a l s o P e t e r s e n v . Tucker (1987),
228 Mont. 393, 396, 742 P.2d 483, 484-85.
In t h e present case, the plaintiff c o u l d have p r o p e r l y
filed suit i n e i t h e r S i l v e r Bow County o r p ad is on County.
The p l a i n t i f f e l e c t e d t o commence t h e a c t i o n i n S i l v e r Bow
County. Such e l e c t i o n was p r o p e r . The ~ i s t r i c tC o u r t d i d
not err in denying the defendants' motion for change of
venue.
Affirmed.