Summary
In Hassing v. Zahalka, 240 Minn. 177, 60 N.W.2d 86, which was an application to this court for a writ of mandamus, the defendant had demanded that venue be changed, and plaintiff had filed written objections thereto.
Summary of this case from State v. AdamsOpinion
No. 36,149.
September 11, 1953.
Mandamus — jurisdiction of supreme court — necessity of action by district court — action of clerk of court.
Under M.S.A. 586.11 the district court has exclusive original jurisdiction in all cases of mandamus except where such writ is to be directed to a district court or a judge thereof in his official capacity. Where change of venue is sought, a party cannot ask this court for a writ of mandamus to direct the transmission of files and records in an action to another county until the district court or its judge has been requested to act. The refusal of the clerk of the district court to transmit the files when such change is demanded cannot be construed to be the refusal of the court or its judge.
Application to this court by order to show cause upon the relation of Harold J. Zahalka for a peremptory writ of mandamus to compel the district court for Waseca county, Axel B. Anderson, Judge, to transfer to Hennepin county the files in an action for breach of contract instituted in Waseca county by R. N. Hassing against relator. Alternative writ discharged.
Loring Anderson, for relator.
Moonan, Moonan, Friedel Senn, for respondent.
Plaintiff instituted an action against defendant in Waseca county. Defendant, pursuant to M.S.A. 542.10, demanded that the venue be changed to Hennepin county where defendant resides. Plaintiff, claiming that the action was properly venued in Waseca county under § 542.08, filed written objections to the change of venue with the clerk of the district court of Waseca county. The clerk, honoring the objections, refused to transfer the files and notified the defendant that he would not do so without an order of the court.
Defendant, as relator, thereupon filed his petition in this court requesting the issuance of an alternative writ of mandamus directing the Honorable Axel B. Anderson, judge of the district court of Waseca county, and Frank S. Papke, clerk thereof, to transfer the files in said action to the district court of Hennepin county or to show cause why that should not be done. A writ was issued and a return made to it by the judge and clerk of said court.
From the proceedings here and the return of the judge and clerk it appears to be undisputed that no application was ever made to the district court or to Judge Anderson for any relief. Plaintiff contends, and rightfully so, that in this situation we are without jurisdiction to grant relator the relief requested. Section 586.11 gives the district court exclusive original jurisdiction in all cases of mandamus except where such writ is to be directed to a district court or a judge thereof in his official capacity. In that case this court has exclusive original jurisdiction. But it is plain, and we have so held, that a party is in no position to ask this court to compel the district court or the judge thereof to act without first having acquainted said court or judge of the situation and requested action. The refusal of the clerk to transmit the files is not the refusal of the court or judge. If the clerk is to be coerced by mandamus, the remedy is within the exclusive jurisdiction of the district court. State ex rel. Minnesota Investment Co. v. District Court, 125 Minn. 522, 146 N.W. 480.
In view of what has been said it becomes unnecessary to consider the other objections raised by plaintiff to the issuance of the peremptory writ.
Writ discharged and petition denied.
MR. JUSTICE FRANK T. GALLAGHER took no part in the consideration or decision of this case.