
    SWAN F. HJELM v. CITY OF ST. CLOUD.
    
    April 30, 1915.
    
      Nos. 19,154-(98).
    Charter of St. Cloud — venue of actions.
    Section 275 of the home rule charter of the city of St. Cloud providing that "all suits or proceedings by or against said city not brought before a city justice shall be brought in the district court of said Stearns county; and no other court whatever shall have original jurisdiction thereof,” is held to refer to transitory actions and to actions and proceedings pertaining to or growing out of governmental affairs of the city, and does not apply to actions for the recovery of real estate which are governed by the general law found in section 7715, G. S. 1913.
    Action in the district court for Benton county to cancel a deed and to adjudge that plaintiff was owner in fee of the property described and entitled to tbe possession thereof, and to compel defend-, ant to account for tbe rents and profits. From an order, Nye, J., sustaining defendant’s demurrer to tbe complaint, plaintiff appealed.
    Reversed.
    
      Harry S. Locke, for appellant.
    
      James E. Jenks, City Attorney, for respondent.
    
      
       Reported in 152 N. W. 408.
    
   Holt, J.

Plaintiff began this action in tbe district court of Benton county, alleging in bis complaint, in substance, tbat be was tbe son and sole beir of Swan Hjelm, wbo died intestate in 1913; tbat in September, 1912, Swan Hjelm was tbe owner of two lots in East St. Cloud, Benton county, Minnesota; tbat while such owner be became ■ non compos and subject to insane delusions as to bis property; tbat, while in this condition, to tbe knowledge of tbe officers and agents of tbe city of St. Cloud, they fraudulently induced him to deed said lots to the city without any adequate consideration; tbat said lots were procured by tbe city for investment and speculation; tbat after procuring tbe deed tbe city took possession, and does now entirely exclude plaintiff from possession and from participation in tbe rents and profits derived from tbe lots, tbe same being improved; and plaintiff demands judgment for cancelation of tbe deed, that be be decreed tbe owner and entitled to possession of tbe premises, and for such further relief as be may show himself entitled to. Defendant demurred on tbe ground tbat tbe district court of Benton county bad not jurisdiction of defendant or of tbe subject of tbe action. Plaintiff appeals from tbe order sustaining tbe demurrer.

Tbe defendant suggests as a preliminary question, tbat plaintiff’s ownership is insufficiently alleged — tbat tbe averment tbat be is tbe sole beir is a mere legal conclusion. As against tbe grounds specified for demurring we do not think tbe complaint fatally defective. It alleges plaintiff to be a son of Swan Hjelm, wbo died intestate, and tbat defendant entirely excludes plaintiff from tbe possession of tbe property wrongfully and fraudulently obtained from plaintiff’s father, and from all rents and profits derived therefrom.

Should tbe demurrer have been sustained on tbe ground tbat tbe district court of Benton county could not obtain jurisdiction of the defendant ? It is true that all transitory actions against municipalities are inherently local, so that, as against an objection properly raised, such actions may not be tried in any other county than the one wherein is the governmental office of the sued municipality. State v. District Court of Waseca County, 120 Minn. 458, 139 N. W. 947, Ann. Cas. 1914C, 106. But it has not been held that if a transitory action is brought against a city in the district court of' a county other than the one wherein the city is located there is want of jurisdiction to hear and determine the matter. In the absence of specific statutory denial of jurisdiction to all district courts except the one wherein is the defendant municipality, we do not think a complaint demurrable because it therefrom appears that such defendant has not its governmental seat in the county where sued, unless this part of the section 275 of the home rule charter of this defendant so determines as to it: “All suits or proceedings by or against said city not brought before a city justice shall be brought in the district court of said Stearns county, and no other court whatever shall have original jurisdiction thereof.” Section 36 of article 4 of the Constitution, granting cities power to frame their own charters, provides that the legislature shall prescribe by law the limits within which such charter shall be framed. Defendant claims authority for enacting section 275 in the enabling act passed pursuant to the constitutional direction, particularly as expressed in this sentence in section 1345, G. S. 1913: “It may prescribe methods of procedure in respect to the operation of the government thereby created, and the duties thereunder of all courts and officers of the district and county in which the city is situated, which duties such courts and officers shall perform.” In all matters pertaining to municipal government the provisions of home rule charters override general laws with respect to the same subject. Grant v. Berrisford, 94 Minn. 45, 101 N. W. 940, 1113; Peterson v. City of Red Wing, 101 Minn. 62, 111 N. W. 840; Schigley v. City of Waseca, 106 Minn. 94, 118 N. W. 259, 19 L.R.A. (N.S.) 689, 16 Ann. Cas. 169. But we do not think it may be said that methods of procedure in the operation of city government in-elude within their scope the power to limit or control the jurisdiction of state courts, especially as to matters not arising out of the conduct of municipal affairs proper. According to the allegations of the complaint the fraud alleged to have been committed by defendant had no connection with its municipal business. It was purely of the sort sometimes indulged in by private parties for gain. However, it may well be said that section 275 of defendant’s charter is of the same force and effect as the act of the legislature in 1889 granting the charter under which the city of St. Cloud operated until the present home rule charter was adopted. Section 17 of chapter 14 of the charier of the city of St. Cloud as found in chapter 6, p. 196, of the Special Laws of 1889, is identical with said section 275 of the present charter. In the enabling act (section 1345, G. S. 1913), is found this sentence with reference to what a city may do in framing a home rule charter: “It may omit provisions in reference to any department contained in special laws then operative in said city or village, and provide that such laws or such parts thereof as are specified, shall continue in force therein.”

But, as we view the matter, the language found in the original charter granted by the legislature to defendant and carried over verbatim, into section 275 of its present charter should be held to apply to transitory actions and proceedings, including those arising in the carrying on of defendant’s governmental function, and should not control those actions which, in equally strong terms, the legislature by general law, have assigned to a local forum. Section 7715, G. S. 1913. Construing the complaint to allege sufficiently plaintiff’s ownership of the lot, we think the action is one for the recovery of real estate properly brought and triable in Benton county where'the lots are situated. As to subject matter the action is the same as disclosed in State v. District Court of Big Stone County, 120 Minn. 526, 139 N. W. 613. See also Kommer v. Harrington, 83 Minn. 114, 85 N. W. 939. Our conclusion is that the general law governs the venue in this case wherein real estate is sought to be recovered, and the demurrer should have been overruled.

Order reversed.  