Boeren v. McWilliams

• Decision Date: 06 March 1916
• Docket Number: 1915
• Citation: 157 N.W. 117,33 N.D. 339
• Court: North Dakota Supreme Court

157 N.W. 117

33 N.D. 339

ANNA BOOREN (MRS. L. C. BRITTEN) v. GEORGE E. MCWILLIAMS

No. 1915

Supreme Court of North Dakota

March 6, 1916

Action for breach of promise of marriage. Appeal from order of District Court of Towner County denying motion for change of venue, Buttz, J.

Affirmed.

Bangs Netcher, & Hamilton, for appellant.

In an application for change of venue in a civil action, on the ground of bias and prejudice on the part of a large number of the people of the county in which the action is pending where the affidavits of the applicant are clear and positive in their expressions, a prima facie case is made.

The opposing deponents may, in the utmost good faith and with propriety, make their affidavits against the application showing that no bias or prejudice exists, and that defendant can have a fair and impartial trial in said county. Still that excitement and prejudice against the defendant do exist and affiants may not know of it, is apparent, and such rebuttal affidavits are not entitled to equal degree of credit with those of the applicant. State v. Nash, 7 Iowa 369; Buck v. Eureka, 97 Cal. 135, 31 P. 845; 4 Enc. Pl. & Pr. 380; Packwood v. State, 24 Ore. 261, 33 P. 674.

The mere fact that even a considerable number of persons in a well-populated county may affirm that no bias or prejudice exists against defendant does not establish such to be the fact, nor does it rebut the prima facie case of defendant. Richardson v. Augustine, 5 Okla. 667, 49 P. 933; State v. Millain, 3 Nev. 432.

The plaintiff's evidence in this case is "weak," and "not convincing." Booren v. McWilliams, 26 N.D. 584, 145 N.W. 410, Ann. Cas. 1916A, 388.

Cuthbert & Smythe, and L. H. Sennett, for respondent.

If the objection is to the judge, he may base his decision on his own knowledge of his qualifications, on motion for change of venue. 5 Standard Enc. Proc. pp. 37, 38, and cases cited.

The appellate court will not reverse for an error not prejudicial, nor will it disturb a finding of the trial court based upon conflicting evidence. 40 Cyc. 183, 184, and cases cited.

In such cases the burden of proof is on the moving party. 5 Standard Enc. Proc. p. 40 and cases cited; Union Mill Co. v. Prenzler, 100 Iowa 540, 69 N.W. 876.

Where the showing is even equal, the order of the court refusing a change cannot be said to be an abuse of discretion. The abuse must be manifest. Alverson v. Anchor Mut. F. Ins. Co. 105 Iowa 60, 74 N.W. 746, and cases cited; Croft v. Chicago, R. I. & P. R. Co. 134 Iowa 411, 109 N.W. 725; Code Civ. Proc. § 58; Wilson's Rev. & Anno. Stat. 1903, § 4256; Horton v. Haines, 23 Okla. 878, 102 P. 124; Gibbert v. Washington Water Power Co. 19 Idaho 637, 115 P. 924; Power v. People, 17 Colo. 178, 28 P. 1121; Michael v. Mills, 22 Colo. 439, 45 P. 429; Doll v. Stewart, 30 Colo. 320, 70 P. 326.

Upon this application, all the evidence for and against which is presented to the supreme court was before and considered by the trial court. In addition, the trial court was possessed of many facts and conditions as to local affairs in the county, not here presented. Clothed in this manner, the trial court denied the motion. Can it be said that this was an abuse of discretion? State v. Rooke, 10 Idaho 388, 79 P. 82; Kentucky Timber & Lumber Co. v. Daniels, 21 Ky. L. Rep. 107, 50 S.W. 1097; Drake v. Holbrook, 28 Ky. L. Rep. 1319, 92 S.W. 297; Warden v. Madisonville, H. & E. R. Co. 125 Ky. 644, 101 S.W. 914; Beavers v. Bowen, 24 Ky. L. Rep. 883, 70 S.W. 195.

The facts upon such a showing must clearly justify the appellate court in reversing the lower court. Louisiana & N.W. R. Co. v. Smith, 74 Ark. 172, 85 S.W. 242.

All reasonable presumptions are in favor of the finding of a trial court. Western Coal & Min. Co. v. Jones, 75 Ark. 76, 87 S.W. 441; Sims v. American Steel Barge Co. 56 Minn. 68, 45 Am. St. Rep. 451, 57 N.W. 322; Colorado Fuel & Iron Co. v. Four Mile R. Co. 29 Colo. 90, 66 P. 902; Northeastern Nebraska R. Co. v. Frazier, 25 Neb. 42, 40 N.W. 607.

OPINION

BRUCE, J.

This is an appeal from an order of the district court denying a motion by the defendant for a change of venue in a case of breach of promise to marry. The motion of the defendant was supported by ninety-one affidavits, though some of these were afterwards withdrawn by the signers, and counter affidavits were filed by them, which not merely stated that the former had been signed by mistake and that the maker had signed them without reading their contents and under the belief that they were merely petitions for a change of venue, and not affidavits, but which took a directly opposite position to that formerly expressed. Opposed to these affidavits and in opposition thereto, there were those of some 271 persons.

The affidavits for a change of venue largely state the same facts, though with some variation. These were that the defendant had resided in the county for more than twenty-five years; that he was the owner of a large quantity of land and carried on extensive farming operations; that the case had been twice tried and had excited much comment in the county, and had stirred up a great deal of antagonism and feeling; that numerous stories had been spread around reflecting upon his character; that the first case had been appealed to the supreme court and a new trial granted, and that the granting of this new trial had been given wide newspaper publicity; that on the second trial, in which a verdict for some $ 13,000 had been recovered and which was set aside on account of admitted errors of law and with the consent of both parties, the publicity attending the case was only emphasized and increased; that the defendant was a Catholic, while the plaintiff was a Protestant, and that this fact had been generally known and discussed by the people of the county, and on account of the anti-Catholic campaign made throughout said county by the issuing and publication of such literature as the "Menace," the "Yellow Jacket," and the "Pillar of Fire, " etc., a strong feeling and sentiment had been created throughout the said county, and the question of the religion of said parties had so entered into the discussion of the case and the supposed facts thereof, that it had become one of apparent supreme importance in the minds of a great many people, and that generally and on account of such things that the affiant believed that a fair trial could not be had in the county.

Of the affidavits in opposition to the motion, the following is a fair sample: "The undersigned being first duly sworn each for himself, deposes and says that he is a member of the board of county commissioners of Towner county, North Dakota and is now and has been for some years last past a resident of said county, and is well and personally acquainted with all the people living in his district, and is well acquainted with all the people living in said county. That on the 20th day of November, 1914, the defendant presented a paper to affiant to sign, representing to affiant that the same was a petition for a change of place of trial of the above-entitled action from said county to some other county; that affiant did not read said paper over, and at the request and solicitation of defendant signed the same; that he did not sign said paper in the presence of any notary public or any person authorized to swear him thereto, and that no person did swear him to said paper, and that said affiant understood said paper to merely be a petition; that since the signing of said paper, affiant has been informed as to the matters stated therein; that many of said matters are not true, and affiant is making this affidavit for the purpose of correcting the same. That affiant is acquainted with the taxpayers throughout said county and those who would serve as jurors in said county; that the existence of said action has not created any abnormal or great interest in said county; that the facts of said case and the merits thereof have not been argued by the citizens of said county, and have seldom, if ever, been mentioned by said citizens, and that there is no line as between those who take sides with the plaintiff and those who take sides with the defendant; that the people in and about the city of Cando do...