Adamson v. Bergen

• Decision Date: 08 October 1900
• Parties: ADAMSON et al. v. BERGEN.
• Court: Colorado Court of Appeals

62 P. 629

15 Colo.App. 396

ADAMSON et al. v. BERGEN.

Court of Appeals of Colorado

October 8, 1900

Appeal from district court, Mesa county.

Action by W.H. Bergen against O.E. Adamson and another. From a default judgment in favor of plaintiff, and from an order denying a change of venue, defendants appeal. Affirmed.a change of venue alleged that A. was a resident of another county and was served with process in that county, and that M. was not in the state when the motion was made, but did not show that M. was not a resident of the county where the suit was brought. Held, that the change of venue was properly denied.

J.S. Carnahan, for appellants.

Samuel G. McMullin, for appellee.

THOMSON J.

This action was brought against O.E. Adamson & Co., a co-partnership, the members of which, according to the original complaint, were W.M. Van Buren and O.E. Adamson, to recover the price of apples sold to the firm by the plaintiff, W.H. Bergen, and by certain other persons, who prior to the commencement of the suit assigned their claims to him. It appearing that Van Buren was not a member of the firm, the action was dismissed as to him, and an amended complaint filed, setting forth substantially the same cause of action against Adamson alone, and averring that he did business in the name of O.E. Adamson & Co. A second amended complaint was filed, which does not require special attention. It stated the same cause of action in changed phraseology. An answer made by Adamson to this complaint disclosed the fact that the firm of O.E. Adamson & Co. was composed of O.E. Adamson and E.E. Miller. The plaintiff thereupon obtained leave to amend again, and filed his third amended complaint, alleging that the members of the firm were O.E. Adamson and E.E. Miller, but making no material change in the previous statement of the cause of action. A stipulation was then entered into between the plaintiff and the defendants Adamson and Miller, giving time to them in which to file a plea or motion in the case. At the expiration of the time mentioned in the stipulation, Adamson and Miller moved the court for a change of the place of trial of the cause to Arapahoe county, on the ground that Adamson was a resident of Arapahoe county, that service of summons was had upon him in that county, and that Miller was not within the state. The motion was supported by the affidavit of the attorney of Adamson and Miller. The motion was denied. Afterwards the defendants Adamson and Miller moved the court for an order striking out the third amended complaint, for the reason that it stated a cause of action different from that set forth in the first complaint. This motion was also denied, and the defendants ordered to answer within 48 hours. The defendants having failed to answer as ordered, a default was entered against them. Afterwards judgment was entered upon the default for $438.15, and the defendants appealed. Errors are assigned to the rulings denying the application for a change of venue and the motion to strike out the third amended complaint, to the order allowing the plaintiff 48 hours in which to answer, and to the final judgment.

Section 27 of the Code provides for the trial of actions in the county in which the defendants, or any of them, may reside at the commencement of the suit, or in the county in which the plaintiff resides when service upon the defendant is made in such county. This application for a change showed that the defendant Adamson resided in Arapahoe county, and the return upon the summons showed that he was served in Arapahoe county; but the application did not show that the defendant Miller was a resident of Arapahoe county, or that he was not a resident of Mesa county, the county in which the suit was commenced and final judgment rendered. That Adamson resided in Arapahoe county was not enough, and, if Miller resided in Mesa county, was wholly immaterial. It was shown that Miller was not in the state at the time the motion was made, but that Mesa county was the county of his residence when the suit was brought is entirely consistent with every statement of the application and affidavit. As his residence in the latter county was not controverted, it must, for the purposes of this opinion, be presumed that he resided there, and that consequently the suit was brought in the proper county. But there is another reason why the application was properly denied. The first complaint alleged a sale of the apples to O.E. Adamson & Co.; the last complaint set forth facts which as we shall see hereafter, amounted to a sale; and in all the complaints it was alleged that the transaction was had, and the apples delivered, in Mesa county. The same Code section to which we have referred further provides that actions for goods sold and delivered may be tried in the county where the goods were sold. The application for a change did not deny that these apples were sold to the defendants in Mesa county. An application to change the trial of a cause from one county to another should negative every hypothesis in favor of the county in which the action was commenced. Unless there should be a disclosure of something to the contrary, it will be presumed that the county in which the suit was brought is the proper county for trial, and we commence the consideration of an application for a change of venue with the assumption of the existence of the necessary conditions requiring the retention of the case in that county, except in so far as the contrary may appear from the application.

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