                                No. 86-481
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1987



JENNIFER BROWN, a Minor Child,
et al.,
              Plaintiff and Respondent,
         -VS-

DARRYLE HARTWELL,
                 Defendant and Appellant.



APPEAL FROM:     District Court of the Fourth Judicial District,
                 In and for the County of Missoula,
                 The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Terry A. Wallace, Missoula, Montana
         For Respondent:
                 William Boggs, Missoula, Montana



                                    Submitted on Briefs:   Feb. 13, 1987
                                      Decided:   March 17, 1987
Filed:   MAR I 7 887
Mr. Justice John C.   Sheehy delivered the Opinion of the
Court.


     Darryle Hartwell appeals from an order of the District
Court, Fourth Judicial District, Missoula County, denying his
motion for a change of venue from the District Court in
Missoula County to the District Court in Lake County. The
complaint alleges that on August 1, 1981, Jennifer Brown was
injured while she was swimming in Flathead Lake, located in
Lake County, Montana.   Darryle was operating a boat, towing
an inner tube, and the tow rope is alleged to have hit
Jennifer in the face, causing her injuries. Jennifer resided
in Lake County, and Darryle was a resident of Missoula County
at the time of the incident.
     Jennifer filed suit for her alleged injuries in Missoula
County and served Darryle as defendant in Missoula County,
his place of residence. In January, 1983, Darryle moved for
a change of venue to Lake County.     On August 4, 1986, the
District Court denied the motion for change of venue, and
this appeal ensued.
     On appeal, counsel for Jennifer contends that under
Montana law the place of residence of the defendant is
clearly the proper venue for such a suit, and that Darryle's
appeal from the denial of the motion for change of venue is
frivolous, entitling Jennifer to attorneys fees, costs and
sanctions by way of a money award under Rule 32, Montana
Rules of Appellate Civil Procedure.     Darryle on the other
hand contends that the law in force at the time the motion
was made for change of venue clearly requires the tort action
be tried in the county where the tort occurred.
     The opposite contentions of the parties arise quite
naturally from the confusion of statutes relating to venue
before, during and following the time this action has been
pending in the District Court.
     Formerly,   §   93-2904, R.C.M.   (1947) provided in pertinent
part :
      In all other cases the actions shall be tried in
      the county in which the defendants or any of them,
      may reside at the commencement of the action, or
      where the plaintiff resides, and the defendants, or
      any of them, may be found;          ...
                                            Actions upon
      contracts may be tried in the county in which the
      contracts were to be performed, and actions for
      torts in the county where the tort was committed;
      subject, however, to the power of the court to
      change the place of trial as provided in this code.
      In those cases decided under the foregoing statute, it
was usually held that the proper venue for a cause of action
for a tort was the county in which the tort was committed.
Putro v. Manniax Electric, Inc. (1966), 147 Mont. 314, 412
P.2d 410; Petition of Wasson (1964), 143 Mont. 323, 389 ~ . 2 d
406; Maio v. Greene (1943), 114 Mont. 481, 137 ~ . 2 d670;
Stewart v. First National Bank and Trust Company (1933), 93
Mont. 390, 18 P.2d 801; Dryer v. Director-General of
Railroads (1923), 66 Mont. 298, 213 P. 210; Yore v. ~ u r p h y
 (1891), 10 Mont. 304, 25 P. 1039; however in dictum, the
Federal District Court had indicated that either the county
of residence of the defendant or the county where the tort
was committed was the proper county in which to bring a tort
action.    Tassie v. Continental Oil Company (u.S.D.C. Mont.
1964), 228 F.Supp. 807.
     It will be noted that former S 93-2904 also refers to
contract actions, and with respect to that kind of action,
this Court has held that either the place where the contract
was to be performed, or the place of residence of the
defendant was a proper venue for a contract action.      This
Court stated that the general rule in contract cases was that
the action was to be tried in the county of the defendant's
residence where the plaintiff's pleadings did not clearly
establish that the contract forming the basis for the action
was to be performed in the county where the action was
brought.   McNussen v. Graybeal (19621, 141 Mont. 571, 380
P.2d 575; Fraser v. Clark (1954), 128 Mont. 160, 273 P.2d
105.
     The Revised Codes of Montana        (1947), with their
amendments, were recodified in 1978 as Montana Codes
Annotated.   The venue statute which formerly existed as S
93-2904, R.C.M. (1947) was divided into several sections.
With respect to tort actions, the recodified provision was as
follows:
     25-2-102. Tort Actions. Actions for tort may be
     tried in the county where the tort was committed,
     subject, however, to the power of the court to
     change the place of trial as provided in this code.
     No reference is found in the Montana Codes Annotated for
1978 and subsequent years until 1983 allowing venue of an
action in the county where the defendant resides, except in 5
25-2-108. That statute provided:
     25-2-108. Other Actions. 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 or where the plaintiff
     resides and the defendants or any of them may be
     found ;
     Thus, at the time that Darryle in this case moved for a
change of venue, the tort statute on venue required the
action to be brought in the county where the tort was
committed. Section 25-2-102, supra.
     In 1985, all of the venue statutes were amended, with
the objective of bringing the venue statutes into line with
the court's decisions and to clearly delineate the proper
venue for all kinds of actions.    Ch. 432, Laws of Montana
(1985).  The policy of the venue statutes as amended is that
the proper place of trial is where the defendant resides in
civil cases.
     Section 25-2-118, MCA, provides:
     Unless otherwise specified in this part:
     (1) Except as provided in subsection (3) [not
     applicable here], the proper place of trial for all
     civil actions is the county in which the defendants
     or any of them may reside at the commencement of
     the action ...
     With respect to actions in tort, the venue statutes now
provide :
     25-2-122. Torts. The proper place of trial for a
     tort action is:
     (1) The county in which the defendants, or any of
     them, reside at the commencement of the action; or
     (2) The county where the tort was committed.   ..
     In this case therefore at the time that Darryle moved
for change of venue to Lake County, there was ample statutory
authority for him to insist that he was entitled to such
change of venue based on S 25-2-102, MCA (1978). However at
the time that the District Court decided the motion for
change of venue, the venue statutes had been amended, and the
evident policy of the legislature may now be found to require
that in all civil actions the proper place of trial is in the
county of the defendant's residence but that in tort actions,
such proper county may be the county of defendant's residence
or the place where the tort was committed. Section 25-2-122,
MCA (1985).
     We determine in this cause that because the legislative
policy with respect to venue is now plainly expressed, we
affirm the decision of the District Court that Missoula
County is the proper place of trial since it is one of two
    counties which are proper venues for a tort action under the
    latest legislative enactment.   Neither party shall recover
    costs on this appeal.
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                                                        Justice
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