Opinion
No. 33,418.
October 30, 1942.
Venue — change of venue — action brought in proper county.
Where an action is brought in the proper county against a sole defendant and another defendant is later made a party and demands a change of venue to the county of his residence, he is not entitled thereto as a matter of right although the original defendant joins him in the demand and consents thereto.
Application to this court by order to show cause upon the relation of Western Surety Company of Sioux Falls, South Dakota, and Harvey Hageman for a peremptory writ of mandamus to compel the district court for Kandiyohi county and the Honorable Harold Baker, judge thereof, to change the venue to the district court for Stearns county of an action brought by Albert G. and Florence C. Hanson against the surety company in which Harvey Hageman was joined as an additional defendant. Application denied.
Faegre Benson, Paul J. McGough, and Everett A. Drake, for relators.
Roy A. Hendrickson and Sexton, Mordaunt, Kennedy Carroll, for respondents.
This action was originally brought in Kandiyohi county against the Western Surety Company of Sioux Falls, South Dakota, as sole defendant, summons and complaint being served upon it on the 25th of June 1942. September 16, 1942, Harvey Hageman asked to be made a defendant, and an order was made to that effect September 17, 1942. Hageman immediately made a demand for change of venue to Stearns county, the place of his residence. The clerk of district court of Kandiyohi county, where the action was commenced, refused to transfer the file, and the defendants now seek a peremptory writ of mandamus compelling him to do so.
The Western Surety Company is a foreign corporation, and the action commenced against it alone was properly laid in Kandiyohi county, where it was commenced. Change of venue as a matter of right rests entirely upon the statute. Minn. St. 1941, § 542.10 (Mason St. 1927, § 9215). That section makes the only provision for change of venue as a matter of right and applies only to actions where the county designated in the complaint is not the proper county. Such being the case, it has no application where at the time the action is commenced it is brought in the proper county, as it was here. The case is controlled by Healy v. Mathews, 108 Minn. 125, 121 N.W. 428.
Alternative writ of mandamus discharged and application for peremptory writ denied.