Ashton v. Garretson

• Citation: 85 P. 831,37 Colo. 90
• Parties: ASHTON v. GARRETSON.
• Decision Date: 04 June 1906
• Court: Supreme Court of Colorado

85 P. 831

37 Colo. 90

ASHTON v. GARRETSON.

Supreme Court of Colorado

June 4, 1906

Error to District Court, Arapahoe County; Frank W. Owers, Judge.

Action by Philip Garretson against Scott Ashton. Judgment in favor of plaintiff, and defendant brings error. Reversed.

This action was commenced in the district court of Arapahoe county July 5, 1891, upon two promissory notes dated and executed at the town of Victor, Teller county, Colo. Summons was served upon plaintiff in error, the defendant below, the 15th day of July, 1891, at Victor, in the county of Teller, state of Colorado. On August 2d the defendant filed an answer, and at the same time an application for change of venue, supported by affidavit, to the effect that the notes sued on were executed at the town of Victor, and county of Teller, and that the defendant at the time of the service of the summons was a bona fide resident of said county. On March 10, 1892 the application was denied, and thereafter judgment rendered against defendant upon the pleading. Section 27 of Mills' Ann. Code provides, inter alia, '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 in the county where the plaintiff resides when service is made on the defendant in such county; * * * actions upon notes or bills of exchange in the county where the same are made payable.' Section 29 provides: 'The court may on good cause shown, change the place of trial in the following cases: First, when the county designated in the complaint is not the proper county.'

Ralph Hartzel and James C. Starkweather, for plaintiff in error.

Bicksler McLean & Bennett, for defendant in error.

GODDARD, J. (after stating the facts).

The jurisdiction of our district courts is co-extensive with the state; but when an action is brought in a county other than that in which it should be tried, the defendant may avail himself of his right to change the venue to the proper county. Fletcher et al. v. Stowell, 17 Colo. 94, 28 P. 326; Wasson v. Hoffman, 4 Colo.App. 491, 36 P. 445. And upon a proper showing the duty of the court is mandatory and its jurisdiction is divested except for the purpose of making the order of removal. D. & R. G. R. R. Co. v. Cahill, 8 Colo.App. 158, 45 P. 285; Smith v. The People, 2 Colo.App. 99, 29 P. 924; Pearse v. Bordeleau, 3 Colo.App. 351, 33 P. 140. The language of section 27 above quoted expressly provides that all cases, unless...