Opinion
No. 33,136.
December 5, 1941.
Municipal corporation — action against municipality in county other than where situated — venue.
Whether a municipality may be sued elsewhere than in the county in which it is situated is a question of venue rather than jurisdiction.
Application to this court by order to show cause upon the relation of the city of Austin for a peremptory writ of mandamus to compel the district court for Olmsted county to change the venue from Olmsted to Mower county of an action by the Scaife Company against H. Dornack and others in which the city was brought in as an additional defendant. Writ discharged.
B.E. Hughes, for relator.
Allen Allen, James T. Spillane, A.H. Clemens, and Moonan Moonan, for respondents.
The city of Austin, having been brought into this case as an additional defendant, first appeared specially and objected to the jurisdiction of the court "upon the ground that the City of Austin * * * cannot be sued or compelled to defend itself" elsewhere than in the county of Mower, where it is located. Thereafter and without motion or other application below for change of venue, it secured from this court an alternative writ of mandamus, which it wants made absolute so as to change the venue of the case from Olmsted to Mower county. The alternative writ is discharged for the simple but sufficient reason that no motion was made below for change of venue.
Doubtless the venue will be changed to Mower county because now all of the defendants seem to want it so, and there is implication that plaintiff will not object.
In passing it should be said that the susceptibility of a municipality to suit elsewhere than in the county in which it is situated is a question of venue and not jurisdiction. That appears from consideration and comparison of State ex rel. Johnson v. District Court, 120 Minn. 458, 139 N.W. 947, Ann. Cas. 1914C, 106, and City of International Falls v. American Traction Co. 157 Minn. 207, 195 N.W. 891.
One thing more. The attention of counsel is invited to Rule II of this court [200 Minn. xxvi], the gist of which is that here "the style," that is, the title, "of all cases under review shall be as in the court below."
Writ discharged.