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334.

5. Venue 58-Demand for change does not take place of motion or presentation of evidence of residence.

The plaintiff in this case never had not made for nearly a month after his first such a right in the property involved until appearance, a change of venue was properly the survey was made. In other words, it was denied. laboring under such a disability that it could not, as owner, maintain an appropriate action to protect its title because it could not identify any of the lands until they were surveyed. It is a familiar principle that the statute does not begin to run until the disability of the owner is removed.

The judgment and order are reversed, and the district court is directed to render judgment in favor of plaintiff.

Reversed and remanded.

REYNOLDS, COOPER, HOLLOWAY, and GALEN, JJ., concur.

(62 Mont. 83)

DANIELSON v. DANIELSON.

(No. 4568.) Dec. 24, 1921. Rehearing Denied Jan. 16, 1922.)

(Supreme Court of Montana.

1. Venue 34-Statutes held companion statutes, and to be construed together.

Rev. Codes, § 6505, providing that, if the county in which an action is commenced is not the proper county for trial, the action may notwithstanding be tried therein, unless defendant demands a trial in the proper county, and section 6506, providing for a change of venue when the county designated in the complaint is not the proper county, are companion statutes, and must be construed together.

2. Venue 56-When complaint does not show defendant's residence burden on defendant to show residence in another county.

Under Rev. Codes, §§ 6505, 6506, if the complaint does not disclose the place of defendant's residence, the burden is on defendant to make known the fact that he is a resident of a county other than that in which the action was commenced, if he would secure a change of venue on that ground.

Under Rev. Codes, §§ 6505, 6506, where neither the complaint nor the answer showed defendant's place of residence, his demand, under section 6505, for a change of venue did not to present of the place of his residence, nor constitute the evidence which he was required take the place of the motion required by sec

tion 6506.

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While under Rev. Codes, § 6588, an amended complaint, filed after answer without leave of court first obtained, is subject to be stricken from the files on defendant's motion, if it is not stricken, and the court thereafter recognizes it, the irregularity is deemed cured. 8. Divorce 160-Judgment by default proper when amended complaint, containing additional count, was not answered.

Under Rev. Codes, § 6537, requiring defendant to answer an amended complaint or amendment to the complaint, where a wife, suing for divorce on the ground of willful neglect, filed an amended complaint, containing an additional count charging extreme cruelty, none of the allegations of which was denied by the original answer, and defendant filed no answer to the amended complaint, judgment by default was properly rendered against him. 9. Judgment 145 (2) Default not opened unless injustice shown prima facie.

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A judgment by default should not be opened after it has been entered, unless it is made to appear prima facie that the judgment as it

3. Venue 57-Court cannot change venue stands is unjust. sua sponte.

Under Rev. Codes, § 6506, providing that the place of trial must be changed on motion when the county designated in the complaint is not the proper county, defendant must make a motion for a change of venue, and the court cannot change the place of trial sua sponte. 4. Venue 61-Right to change waived, unless defendant presents evidence of residence and moves for change at time of his first appearance.

Under Rev. Codes, §§ 6505, 6506, a defendant, seeking a change of venue on the ground that he is a resident of another county, must present evidence of his residence and move for a change of venue at the time of his first appearance, when the answer or demurrer is filed; and, when notice of a motion for a change of venue was not filed until nine days after defendant's answer, and the motion itself was

Appeal from District Court, Phillips County; H. C. Hall, Judge.

Action by Anna Danielson against David Danielson. From a judgment for plaintiff and an order denying a motion to vacate the judgment, defendant appeals. Affirmed.

T. F. McCue, of Great Falls, for appellant.
Fred C. Gabriel, of Malta, for respondent.

HOLLOWAY, J. This action was instituted in the district court of Phillips county. The original complaint was filed August 5, 1919, and set forth a cause of action for divorce upon the ground of willful neglect. On September 18, defendant filed his answer and a demand in writing that the venue be changed to Teton county. On September 26

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(203 P.)

plaintiff served an amended complaint, and 110 Pac. 329), and, if not presented at that on the day following filed it. On Septem- time, the right to a change of venue is ber 27 defendant gave notice that on October waived (State ex rel. Williams v. District 10 he would move the court for a change of Court, 56 Mont. 478, 185 Pac. 458). venue upon the grounds set forth in certain affidavits then filed. The court minutes for October 11 recite that the motion was denied, and on November 6 the default of the defendant was entered for failure to answer the amended complaint. On the same day evidence was heard, and on November 7 a decree of divorce was rendered and entered. On November 19 a motion was made to vacate the judgment and set aside the default, but this motion was overruled, and defendant appealed from the judgment and from the order refusing to vacate it.

Error is predicated upon the refusal of the court to change the venue. Section 6505, Revised Codes, reads as follows:

"If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears and answers or demurs, files an affidavit of merits, and demands, in writing, that the trial be had in the proper county."

The only ground for change of venue suggested by defendant is that he is a resident of Teton county, and was at the time this action was commenced.

[1-3] Section 6505 merely confers jurisdiction to try the cause if a change of venue is not demanded. Section 6506 enumerates the causes for which a change of venue may be had, the first of which is, "when the county designated in the complaint is not the proper county." These sections are companion statutes, and must be construed together. If the complaint does not disclose the place of defendant's residence, the burden is upon the defendant himself to make known the fact that he is a resident of a county other than the one in which the action was commenced, if he would secure a change of venue upon the first ground mentioned in section 6506. Greenleaf v. Jacks, 133 Cal. 506, 65 Pac. 1039. But disclosing his place of residence alone is not sufficient. He must also make a motion for the change. Under the express terms of section 6506 the court can act only "upon motion," and cannot change the place of trial sua sponte. State ex rel. Gnose v. District Court, 30 Mont. 188, 75 Pac. 1109.

[4] When section 6505 is read in connection with section 6506 it becomes apparent that the evidence of defendant's residence and the motion for change of venue must be presented at the time of first appearance when the answer or demurrer is filed (State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 Pac. 1030; Cook v. Pendergast, 61 Cal 72; Wadleigh v. Phelps, 147 Cal. 541, 82 Pac. 200; Union Lumber Co. v. Metropolis Constr. Co., 13 Cal. App. 584,

[5] It may be conceded, for the purposes of this case, that the fact that defendant is not a resident of the county in which the action is commenced may be shown by the complaint, the answer, the affidavit of merits, or a separate affidavit filed for that particular purpose. In this instance neither the complaint nor the answer refers to the defendant's place of residence. There was not any affidavit filed at the time defendant first appeared, and there was therefore nothing before the court at that time to indicate that the action had not been commenced in the proper county. The demand for a change of venue is not any evidence of the place of defendant's residence. It need not be verified, and in the usual course of practice is signed by the attorney.

[6] The notice of motion for a change of venue was not filed until nine days after defendant answered, and so far as disclosed by the record the motion itself was not made until October 10, nearly a month after defendant's first appearance. The demand referred to in section 6505 does not supply the place of the motion required by section 6506. Bohn v. Bohn, 164 Cal. 532, 129 Pac. 981; Holt v. Warf (Idaho) 194 Pac. 475. The right to a change of venue is purely statutory, and can be asserted successfully only by one who brings himself within the statute. Powell v. Sutro, 80 Cal. 559, 22 Pac. 308. In the absence of a motion and a proper showing made seasonably that the action was not commenced in the proper county, the court did not err in refusing to change the venue. [7, 8] 2. The record does not show that the amended complaint was filed by leave of court, and, since the plaintiff was not entitled to amend as a matter of right under section 6588, Revised Codes, counsel for defendant insist that the amended complaint did not perform the function of a pleading, and therefore did not require an answer. It is the rule that an amended complaint, filed after answer and without leave of court first obtained, is subject to be stricken from the files on motion of the defendant. Meredith v. Roman, 49 Mont. 204, 141 Pac. 643. But if it is not stricken and the court thereafter recognizes it, the irregularity will be deemed cured (31 Cyc. 368), and this should be the rule in this jurisdiction where amendments are allowed with the utmost liberality. But counsel for defendant contend that by reason of the fact that the answer to the original complaint was on file, the court was without authority to enter the default and Gettings v. Buchanan, 17 Mont. 581, 44 Pac. 77, is cited in support of the contention. this court held, in effect, that if the answer to the original complaint puts in issue the

In that case

material allegations of the amended complaint to such extent that plaintiff is not entitled to relief upon the matters alleged and not denied, defendant may rely upon his answer, and his failure to plead further will not subject him to default. This appears to be the general rule in the absence of any statute to the contrary. 31 Cyc. 460.

We need not stop to consider to what extent, if at all, the rule above was modified by the enactment of section 6537, Revised Codes, for defendant did not bring himself within the rule of the Gettings Case or the rule of the later statute. The amended complaint added another count-a charge of extreme cruelty-and none of the allegations of this count are denied by the answer, so that it was possible for plaintiff to abandon the charge of willful neglect and secure all the relief she demanded upon the allegations which were not put in issue. It is the general rule that when a material amendment is made to the complaint, the defendant must answer or demur anew. This is the meaning of our statute, section 6537 above. Hansen v. Goodrich, 56 Mont. 140, 181 Pac. 739.

[9] Every consideration of expediency and justice is opposed to opening up a case in which judgment by default has been entered, unless it is made to appear prima facie that the judgment as it stands is unjust. Donnelly v. Clark, 6 Mont. 135, 9 Pac. 887. Defendant failed to avail himself of the opportunity to present his defense, if any he had, and cannot now complain.

The judgment and order are affirmed.
Affirmed.

of the commission form of government; any ordinance and general laws (Rev. Codes, §§ 3326, 3328), to the contrary becoming inoperative upon such adoption, in view of sections 8, 9, 15, and 25.

3. Municipal corporations 196 - Fire chief held entitled to reinstatement.

Where council of a city of the first class removed fire chief and though not obliged to, restored him to the roll of members of the fire department, he was entitled to all the safeguards afforded to him as such member, under an ordinance passed prior to adoption of the commission form of government by the city pursuant to Rev. Codes, §§ 3326–3328, requiring that hearings be had on charges at the next meeting of the council and in the absence of such a hearing the fireman to be automatically reinstated and compensation be paid for the period of suspension; Laws 1911, c. 57, § 25. subd. (C), merely providing another procedural remedy not inconsistent with the general law.

Appeal from District Court, Lewis and Clark County; W. H. Poorman, Judge.

Application by the State, on the relation of Thomas J. Daly, for a writ of mandamus against John Dryburgh, as Mayor of the City of Helena, and others, to compel them to reinstate relator as Chief of the Fire Department of the City. Writ awarded, and defendants appeal. Reversed and remanded. E. C. Day, of Helena, for appellants. Edward Horsky, of Helena, for respond

ent.

GALEN, J. This is an appeal from a judgment of the district court of Lewis and Clark

BRANTLY, C. J., and REYNOLDS, COOP- county entered in a mandamus proceeding ER, and GALEN, JJ., concur.

(62 Mont. 36)

STATE ex rel. DALY v. DRYBURGH, Mayor
of City of Helena, et al. (No. 4929.)
(Supreme Court of Montana. Dec. 19, 1921.
Rehearing Denied Jan. 16, 1922.)

1. Municipal corporations
exercised in mode prescribed.

61-Power to be

Where a power is conferred on a municipal corporation, and the mode in which it is to be exercised is prescribed by the statute or an independent act, such procedural method must be followed.

2. Municipal corporations 196 Chief of fire department removable at will of council. Under Laws 1911, c. 57, § 19, chief of fire department of a city of the first class with a population of more than 10,000 and less than 25,000, under commission form of government, may be removed at any time by a majority vote of the members of the council, and this is true as to a fire chief appointed under the aldermanic form of government prior to the adoption

instituted by the plaintiff to compel the city council of Helena to reinstate him as chief of the fire department of the city of Helena.

Upon the filing and presentation of plaintiff's affidavit to the court, an alternative writ was issued, which the defendants moved to quash. This motion was denied, the defendants refused to plead further, and, their default having been duly entered, evidence was introduced by the plaintiff in support of his application. Judgment was entered September 1, 1921, against the city of Helena in favor of the plaintiff for the sum of $2,450 and costs, with interest thereon, together with $500 allowed for attorney's fees, and awarding to the plaintiff a peremptory writ of mandate commanding and requiring the defendants forthwith to reinstate the plaintiff in his office, position, place, and right as chief of the fire department of the city of Helena, and all duties, privileges, and emoluments of such office, position, or place From the plaintiff's application for the writ it appears that the city of Helena, at all of the times mentioned, was, and now is, a municipal corporation organized and existing under the laws of the state, having a popula

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(203 P.)

tion of over 10,000 and less than 25,000, be- against the plaintiff as a member or chief of ing a city of the first class.

Prior to July, 1915, the city was conducted by an aldermanic form of government; the mayor being elected by the electors of the entire city and the aldermen by those of the several wards. In July, 1915, the commission form of government, authorized by state law, was adopted, and ever since then the affairs of the city have been governed and controlled by a city council composed of three councilmen, consisting of the mayor and two others.

The plaintiff is a citizen of the United States and a resident qualified elector of the city of Helena. In August, 1897, he was appointed to serve as an active paid "call" fireman (sometimes designated "volunteer fireman") in the fire department of the city, and thereafter served in that capacity until the 16th day of May, 1904, when he was appointed a regularly paid fireman and served as such until May 7, 1906, on which latter date the mayor, with the advice and consent of the city council, duly and regularly appointed him for a probationary term of six months as a fireman, and thereafter, on March 23, 1908, after the expiration of such probationary period, the mayor nominated, and with the consent of the city council, under the then existing aldermanic form of government, duly appointed, the plaintiff a member of the fire department and the chief thereof, to hold during good behavior and while possessed of the physical ability to perform his duties, all in accordance with the statutes of the state and the ordinances of the city in force and effect. On the first Monday in May, 1918, under the commission form of government, the city council reappointed the plaintiff as chief of the fire department, so that continuously from the 7th day of May, 1906, until the 19th day of July, 1920, he was the duly appointed, qualified, and acting chief of such department; the latter date being that on which the city council removed, or attempted to remove, him from his position as such chief, and it appears that no successor has been appointed to succeed him in such position. On the 19th day of July, 1920, a motion was, by the city council, adopted removing the plaintiff as chief of the fire department, and a copy thereof duly served on him by the city clerk, which motion reads as follows:

"I move that, whereas the city council deems it to the best interests of the fire department of the city that there be a reorganization of the department, and that a change be made in the office of chief of the fire department, therefore, be it resolved, that Thomas J. Daly be, and he is hereby removed from the office of chief of the fire department, effective as of this date, and that he be restored to the roll of members of the fire department."

Prior to February 21, 1921, no charges of any kind had ever been brought or preferred

the fire department, and on that date a motion was made and adopted by the city council, which is set forth at length in the notice thereof directed to and served upon the plaintiff, reading as follows:

"Helena, Montana, February 21, 1921. "Mr. Thos. J. Daly, Helena, Montana-Dear

Sir: At a meeting of the city council held on the above date the following motion was adopted:

"I move that Thos. J. Daly be notified that he has been suspended as a member of the Helena fire department of the city of Helena, for neglect of duty in failing to report for service at any time since his removal as chief of said fire department, occurring on July 19, 1920; such action being taken by authority of paragraph 'C' of section 25 of the Commission Form of Government Act, and that the city clerk be directed to notify Mr. Daly of the above action.

"Yours very truly,

"V. N. Kessler, City Clerk."

After receipt of such notice, on February 25, 1921, the plaintiff duly filed with the city council his notice of appeal from the order suspending him. The charges against the plaintiff were not presented at the next meeting of the city council after the meeting at which such suspension order was made, nor at any other time, nor at all, and no hearing has ever been had on the plaintiff's appeal. The plaintiff labors under no physical disability, has protested against his attempted removal as fire chief, and has at all times been willing and in readiness to perform his duties as a member and chief of the fire department. Appended to plaintiff's affidavit and as a part thereof is a copy of Ordinance No. 708 of the city of Helena, passed and adopted February 17, 1908, which has ever since its enactment been in full force and effect, except only as modified by Ordinance No. 1013, increasing the salaries of the chief and other members of the fire department.

This appeal presents but a single question decisive of the controversy, viz.: What is the proper mode of procedure for the removal of the chief of the fire department of the city of Helena under the statutes of the state and the ordinances of the city?

As to the propriety of the dual form of judgment entered in this case, we express no opinion, as no question is raised by the parties with respect thereto.

Section 3326 of the Revised Codes of 1907 provides that the city council of cities and towns shall have power to establish a fire department and to prescribe and regulate its duties. Section 3328 reads as follows:

"The mayor may suspend the chief and assistant or any fireman of the fire department for neglect of duty or a violation of any of the rules and regulations of the fire department; the chief of the fire department may suspend the assistant chief of the fire department or

any fireman and the assistant chief of the fire department may suspend any fireman for a like cause. In all cases of suspension the person suspended must be furnished with a copy of the charges against him in writing, setting forth reasons for the suspension and such charges must be presented to the next meeting of the council and a hearing had thereor, when the suspended member of the fire department may appear in person or by counsel and make his defense to said charges; if such charges are found proven by the council, the council, by a vote of a majority of the whole council, may impose such penalty as it shall determine the offense warrants, either in the continuation of the suspension for a time limited, or in the removal of the suspended person from the fire department; should the charges be not presented to the next meeting of the council after the suspension, or should the charges be found not proven by the council, the suspended person shall be reinstated and be entitled to his usual compensation for the time so suspended."

ed and in force in any such city under its former organization shall remain in force until altered or repealed by the council elected under the provisions of this act."

Section 9 provides that in every city of the first class, having a population less than 25,000, there shall be a mayor and two councilmen.

Section 15 reads:

"Every city shall be governed by a mayor and councilmen, as provided in section 9 of this act, each of whom shall have the right to vote on all questions coming before the council." Section 19 provides in part:

*

* The council shall at its first regular meeting after the election of its members, or as soon thereafter as practicable, elect by majority vote the following officers: A city clerk, *" etc., "and such other officers and assistants as shall * * be necessary to the proper and efficient conduct of the affairs of the city. Any officer or assistant, elected or appointed by the council, may be removed from office at any time by a majority vote of the members of the council, except as otherwise provided in this act."

And subdivision (C) of section 25 is as follows:

These sections of our statute were adopted by the Sixth Legislative Assembly in 1899 (page 73), and will herein for convenience be referred to as the "Firemen's Act." On comparison it has been found that Ordinance No. 708 of the city of Helena, passed and drawn approved February 17, 1908, was wholly with reference to these statutes; sections 1, 2, and 3 thereof being expressly au- "All persons subject to such civil service thorized by section 3326 and 3327 of the Re-examination shall be subject to removal from vised Codes, and section 4, providing for the suspension and removal of the chief of the fire department and firemen, being almost an exact reproduction of section 3328, Rev. Codes. Both under the statute (section 3328), and the ordinance (section 4), if unaffected by the adoption by the city of the commission form of government, the mayor may suspend the chief of the fire department for neglect of duty or violation of any of the rules or regulations of the fire department. In such case the person suspended must be furnished with a written copy of the charges against him, setting forth the reasons for his suspension, and such charges must be presented at the next meeting of the city council, and a hearing had thereon.

office or employment by the council for misconduct or failure to perform their duties under such rules and regulations as it may adopt, and the chief of police, chief of the fire dein charge, of municipal work may peremptorily partment or any superintendent, or foremen suspend or discharge any subordinate then under his direction for neglect of duty or disobedience of his orders, but shall, within twenty-four hours thereafter, report such suspension or discharge, and the reason therefor, to the superintendent of his department, who shall thereupon affirm or revoke such discharge or suspension, according to the facts. Such employee (or the officer discharging or suspending him) may, within five days of such ruling, appeal therefrom to the council, which shall fully hear and determine the matter."

However, it is urged by counsel for the de- The Metropolitan Folice Law (sections 3304 fendants that by the adoption of the commis- to 3317, inclusive, Rev. Codes), is quite simsion form of government by the city of Hel-ilar, in its provisions relating to the appointena the Firemen's Act and Ordinance No. 708 ment, suspension, and discharge of the chief became inoperative as respects the removal of police and of members of the police force, or suspension of the chief of the fire depart- to the provisions of the Firemen's Act, as ment. The law authorizing the commission respects the chief and members of the city form of government for cities was adopted fire department. As to policemen, this court by the Twelfth Legislative Assembly, and has held that the mode of their suspension appears as chapter 57, Laws of 1911. The or removal prescribed by the Metropolitan provisions thereof applicable to the question Police Law obtains under the commission under discussion are the following: form of government as forcibly as under the aldermanic form. State ex rel. McDonald v. Getchell, 51 Mont. 323, 152 Pac. 480; State "All laws governing cities of the first, second and third classes and not inconsistent with the ex rel. Lease v. Wilkinson, 55 Mont. 340, 177 provisions of this act, shall apply to and govPac. 401; State ex rel. Lease v. Wilkinson, ern cities organized under this act. All by- 59 Mont. 327, 196 Pac. 878. These decisions laws, ordinances and resolutions lawfully pass- are proper in their interpretation of the ap

Section 8 provides in part:

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