State ex rel. Woodward v. District Court

delivered the opinion of the court.

Mandamus. On November 17, 1916, John Woodward, Lester Woodward and Roy Woodward, as copartners, brought an action in the district court of Madison county against George W. Melton and N. E. Foster. The complaint states two causes of action, one for damages for trespass upon land situate in Madison county, and the other for damages to personal property while the same was in Madison county. • The defendants both reside in Beaverhead county and were served with summons there. On their appearance in the action the defendants filed an affidavit of merits and a motion for the transfer of the cause to Beaverhead county for trial. The motion was sustained and the cause transferred. Thereupon application was made to this court for a writ of mandamus directing the district court and *359Honorable W. A. Clark, the judge presiding, to vacate the order and retain the action for trial in Madison county. An alternative writ having been issued and served, defendants moved to set aside and dismiss the proceeding on the ground that mandamus is not the proper remedy.

[1] In State ex rel. Independent Pub. Co. v. Smith, 23 Mont. 329, 58 Pac. 867, this court held that an order granting or refusing to grant a motion for a change of venue on the ground of residence is a judicial act, and that it will not be set aside by mandamus. That case is conclusive of this. (See, also, State ex rel. King v. District Court, 24 Mont. 494, 62 Pac. 820; State ex rel. Dempsey v. District Court, 24 Mont. 566, 63 Pac. 389; State ex rel. Mont. C. Ry. Co. v. District Court, 32 Mont. 37, 79 Pac. 546; State ex rel. Rowe v. District Court, 44 Mont. 318, Ann. Cas. 1913B, 396, 119 Pac. 1103.)

The alternative writ is vacated and the application dismissed.

Dismissed.