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Kolb v. Monroe6/24/1998
sess no discretion to deny a change to the only county where venue correctly lies." Nielsen v. Boos, 1997 SD 117, Section 4, 571 NW2d 653, 654 (citations omitted).
[ ] It is well settled that the parties' stipulated extension of time for Monroe to file an answer to Kolb's complaint does not alter the time within which application for a change of venue is required to be made pursuant to SDCL 15-5-10. Williams Ins. v. Bear Butte Farms Partnership, 392 NW2d 831, 833 (SD 1986); Blair v. Scherle Irrigation Sales, Inc., 252 NW2d 320, 322 (SD 1977); Midwest Oil Co. v. Olson, 66 SD 90, 278 NW 544 (1938); Irwin v. Taubman, 26 SD 450, 128 NW 617, 619 (1910). In this case, the time fixed by statute for Monroe to apply for venue change was November 4, 1996, a Monday.
[ ] This Court's precedent establishes that Monroe had until this date to make demand for venue change, and, failing to obtain plaintiff's consent, make application to the court. Both requirements must have been met by the November 4, 1996 deadline. In Barbour v. Fidler, 31 SD 351, 356, 141 NW 88, 89 (1913), this Court instructed that:
If plaintiff consents to the change, he may indorse such consent on the demand or sign a stipulation to that effect, and the court will direct the change without further proceeding. On the other hand, if plaintiff refuses to give such consent, it then becomes incumbent upon the defendant, and before the time for answering expires, to make his application to the court. But this must be made in the regular way, either by motion or order to show cause, and after due and timely notice thereof to the plaintiff. There is nothing in the language of the statute to take the case out of the general rule, or to indicate that the proceeding in this matter is to be different from that governing ordinary motions or orders to show cause, and, in order to give the court jurisdiction, it is necessary that the plaintiff be given timely notice and an opportunity to be heard and rebut defendant's showing, if he can.
(applying the statutory precedent of SDCL 15-5-10 with nearly identical language, in relevant part). Barbour further instructed that, although application for a change of venue must be made with the court before the time for answering expires, " t is not necessary that the application for a change of venue be heard or disposed of within the time for answering." 31 SD at 357, 141 NW at 89. In Midwest Oil, 278 NW at 544, this Court, applying the precedent statute and citing Barbour with approval, stated " f the 'demand in writing' and the application to the court are made within the time for answering, the statute, section 2328, in that respect is complied with." See also Blair, 252 NW2d at 321 (acknowledging that, pursuant to SDCL 15-5-10, defendant's demand to plaintiff and application to the court, following plaintiff's refusal to give his consent, must be made within time for answering).
[ ] Monroe claims he timely met both requirements by filing the demand for change of venue with the trial court on October 15, 1996. The question presented in this appeal is whether Monroe's demand constituted application for a court order as required by SDCL 15-5-10. There is no dispute Monroe's written demand met the requirement for change by consent of the parties. However, Kolb did not consent to change venue.
[ ] Applications to the court for an order are made in the form of motions. SDCL 15-6-7(b)(1). Black's Law Dictionary 1013 (6thed 1990) defines "motion" as " n application made to a court or Judge for purpose of obtaining a rule or order directing some act to be done in favor of the applicant." Examination of the language of Monroe's demand, and in particular the final
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