                                   No. 14521
                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1979


STATE OF MONTANA, SONNY OMHOLT, AUDITOR
FOR THE STATE OF MONTANA, and the PUBLIC
EMPLOYEES' RETIREMENT BOARD OF THE STATE
OF MONTANA,
                      Plaintiffs and Respondents,
           VS.

SECURITY STATE BANK,
                      Defendant and Appellant.


Appeal from:         District Court of the First Judicial District,
                     Honorable Peter G. Meloy, Judge presiding.
Counsel of Record:
  For Appellant:
     Smith and Harper, Helena, Montana
     Loren J. O'Toole, Plentywood, Montana
  For Respondents:
     Hon. Mike Greely, Attorney General, Helena, Montana


                                    Submitted on briefs: November 28, 1979
                                                             -        , = -

                                                 Decided:   ;kc   '


Filed:   <F:'    -




                                              Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     Appeal is by the defendant Security State Bank from an
order of the District Court denying defendant's motion for
change of venue.
     The State of Montana, through its State Auditor, Sonny
Omholt, brought a civil action in the District Court of the
First Judicial District of the State of Montana in and for
the County of Lewis and Clark, against Security State Bank
of Plentywood, Montana.     The State seeks to recover $5,482.26
on behalf of the Public Employees' Retirement Board for retirement
benefits paid out to "John E. Rucker" over a six year period.
The benefits were paid in a series of 72 state warrants issued
after Rucker's death.     The appellant Bank presented the warrants
for payment, and they were paid.    The State's action is based
on its claim that the warrants were wrongfully presented by
the Bank.
     The Bank filed its motion for change of venue in astimely
manner upon two grounds (1) that the defendant Bank resided
in the County of Sheridan at the commencement of this action

and continues to reside in said county and, (2) that the interests
of justice and the convenience of witnesses would be best served
by a change of venue to the County of Sheridan.
     The order of the District Court denied the change of
venue upon the first ground, and denied the motion on the second
ground because it was prematurely brought, but without prejudice
to a further motion based on the second ground.
     The Bank appeals the order of the District Court, and the

issue before us is whether the venue of this action properly
should have been transferred to the Fifteenth Judicial District
Court for the County of Sheridan, based on the residency of
the Bank.
     It is not disputed that the residence of the defendant
Bank, though a corporation, is in Plentywood, located in Sheridan
County.     The general rule that a cause against a defendant should
be tried in the county in which he resides is embodied in section
25-2-108, MCA [formerly section 93-2904, R.C.M. 19471 which
provides :
     "In all other cases, the action shall be tried
     in the county in which the defendants or any of
     them may reside at the commencement of the action
     ...     11




     There is a special statute, however, which applies
to suits by the State Auditor such as this one, which provides
for trial in the District Court of Lewis and Clark County.
That section is section 17-4-103(1), MCA [formerly section
79-101 (12), R.C.M.   19471 , which states:
     " (1) In his discretion it is the duty of the
     state auditor to examine the collection of moneys
     due the state and institute suits in its name for
     official delinquencies in relation to the assess
     ment, collection, and payment of the revenue and
     against persons who by any means have become
     possessed of public money or property and failed
     to pay over or deliver the same and against debtors
     of the state, of which suits the courts - -
                                             of the
     county in whichthe - - government may be
                     - seat of
     locatedhave jurisdiction, without regard - -
                                               to the
     residence - - defendants." (Emphasis added.)
               of the
     While the language of section 17-4-103(1), MCA, does
not necessarily grant exclusive jurisdiction of such cases
to the Lewis and Clark County District Court, there can be
no doubt that under that statutory provision courts in that
county are a proper venue for actions commenced by the State
Auditor pursuant to section 17-4-103(1), MCA.    If we assume
that the District Court in the Fifteenth Judicial District
in and for Sheridan County would also be a proper tribunal
in which the State Auditor could commence an action against this
defendant, under section 25-2-108, MCA, it is nevertheless

the rule that if the county in which the action is brought
and the one to which it is sought to have the action transferred
are both proper counties, the action must stay where the
complaint was filed.   Shields v. Shields (1943), 115 Mont.
146, 153, 139 P.2d 528, 529.
     This Court in Rapp v. Graham (1965), 145 Mont. 371,
373-4, 401 P.2d 579, 581, said that statutory provisions
creating exceptions to the general rule recognizing a
defendant's privilege to be sued in his own county will not
be given a strained or doubtful contruction.    Applying that
rule here, the only possible construction of section 17-4-
103(1), MCA, is that it empowers the State Auditor to commence
such suits in the District Court for Lewis and Clark County.

The State here having chosen a venue in which the action is
properly laid to commence its suit, the courts are powerless
based upon the residence of the parties, to transfer the
cause to another venue although the other venue itself may also

have been proper for the commencement of the action.
     The power of the District Court to change the place of
trial, based on residence exists only when the county designated
in the complaint is not the proper county.     Section 25-2-

201, (I), MCA [formerly section 93-2906 (1), R.C.M. 19471.
     The Bank cites the decisions in State v. Campbell
(1906), 3 Cal.App. 602, 86 P. 840; and People v. Pinches
(1931), 214 Cal. Rptr. 177, 4 P.2d 771, 772, as supporting
the Bank's position that similar statutes empowering the
State Auditor to commence suits in courts at the seat of
government in California do not grant exclusive jurisdiction
to such courts but that the actions may be transferred to
the place of defendant's residence.   On the other hand, the
State points to the Idaho decision in State v. Jones (19211,

34 Idaho 83, 199 P. 645, which comes to an opposite conclusion.
However, we do not need to pick and choose between the

                                -4-
possibly conflicting decisions of those jurisdictions.       Our
statutes and decisions under them are clear enough.      In this
case, the State Auditor has commenced his action in a proper
county under the statute and such cause cannot now be transferred
to another county on the basis of the residency of the
defendant.
     As to the second ground urged by the Bank for change of
venue, that the interests of justice and the convenience of
witnesses would be best served by a change of venue to the
County of Sheridan, the District Court properly denied the
change based on these grounds, but left the matter open for
future decision if the Bank should choose to renew its
motion at a proper time.
     Section 25-2-201 (3), MCA [formerly section 93-2906 ( 3 ) ,
R.C.M. 19471 provides that the court must change the place
of trial when the convenience of witnesses and the ends of
justice would be promoted by the change.
     In Maio v. Greene (1943), 114 Mont. 481, 488, 137 P.2d
670, 672, we held that the matter of the convenience of witnesses
cannot be invoked until after the answer has been filed in
the cause, since the trial court cannot consider the materiality
of the witnesses in question or determine the issues until then.

In McNeill v. McNeill (1949), 122 Mont. 413, 417, 205 P.2d 510, 512,
we held that until the defendant has answered, any action of
the District Court in determining a motion for change of venue
upon these grounds is premature.      That policy has been preserved
in our rules of Civil Procedure.      Rule 12(b)(iii), M0nt.R.Civ.P.
provides that any request for a change in the place of trial
based on the convenience of witnesses and the ends of justice
must be presented by motion within twenty days after the answer
to the complaint, or to the cross-claim where a cross-claim is
filed or a reply to an answer where a reply is authorized.         The

                                -5-
District Court by its order, kept the door open for the
Bank to renew its motion for change of venue if at the
proper time it appears that the ends of justice and the
convenience of witnesses would be promoted.
     Since we find no error in the order of the District Court
denying the motion for change of venue, the appeal is dismissed.



                                              Justice


We Concur:



     '   Chief Justice
