Opinion
No. 2067
February 15, 1938
APPEAL from the District Court, Big Horn County; P.W. METZ, Judge.
For the appellant, the cause was submitted upon the brief of Joseph O. Spangler of Greybull.
The words "Civil Actions" as used in Section 89-1101, R.S., apply to irrigation district proceedings and irrigation matters as set out in Chapter 122, Article 7, Wyoming Revised Statutes 1931, and the respective amendments thereto. 89-301, R.S. 1931; 1 Am. Jur., Actions, Sec. 41. Messenger v. Board of County Commissioners, 19 Wyo. 309; Hockeymeyer v. Thompson, 48 N.E. 1029; Schmied v. Keeney, 72 Ind. 309. The Wyoming statute relating to changes of venue was adopted from the Indiana statute. State v. District Court, 39 Wyo. 24; 102 A.L.R. 397. The general rule is stated in 67 C.J. 135 and 27 R.C.L. 812, 825. We believe the demurrer of the respondents to the petition should have been overruled, and the judgment of the trial court should be reversed.
For the respondents, the cause was submitted on the brief of E.J. Goppert of Cody.
Orders fixing time and place of hearing and manner of giving notice thereon in irrigation district proceedings can be entered by a judge who had been sworn off previously to the filing of the report and petition upon which said hearing is to be had, and any order entered thereon, after a hearing had pursuant to such notice, is within the court's jurisdiction and valid. The authorities cited by appellant to the contrary do not seem to be in point. The Indiana cases so cited are governed by statutes. There is no statutory authority for a change of venue in irrigation district proceedings. Changes of venue are statutory and not mandatory. 67 C.J. 133; Gilman v. Donovan, (Iowa) 12 N.W. 779; State v. Braun, 245 N.W. 176; Tucker v. State, 36 Wyo. 430, 251 P. 460. Irrigation district proceedings are not civil actions. 1 C.J. 945, 1093, 1094. An action is commenced by the service of summons. Roe v. Boyle, 81 N.Y. 305; Barger v. Allen. 15 Ohio Rep. 461; State v. Steeley, (Ohio) 153 N.E. 285; Williams v. Grundysen, 55 N.W. 557; In re Olcese's Estate. (Calif.) 291 P. 193; Boggs v. Mortgage Co., (Calif.) 66 P.2d 1253; Dow v. Lillie, (N.D.) 144 N.W. 1082; In re Central Irr. Dist., 49 P. 354. Under the law, a civil action must be commenced by filing in the office of the clerk a petition and causing a summons to be issued. Sec. 89-301, W.R.S. 1931; Seibert v. Switzer, 35 Ohio R. 655. No change of venue is mandatory in an irrigation district proceeding, because they are not civil actions. The right to a change of venue is statutory. There was no defect in the jurisdiction of the district judge, who presided at the hearing.
In this case plaintiff seeks to have the assessments made against his lands in connection with the organization of the Greybull Valley Irrigation District set aside, plaintiff claiming that the adjudications made by the court were without jurisdiction on account of the identical facts and circumstances set forth in the case of Donovan v. Owen, decided this day. The trial court sustained a demurrer to the petition setting forth these facts, and from the judgment entered thereon an appeal has been taken. The contention made herein has been decided adversely to the contention of appellant herein in the case just cited, and the judgment herein is accordingly affirmed.
Affirmed.
RINER and KIMBALL, JJ., concur.