Cliff v. Gleason

• Decision Date: 25 April 1960
• Docket Number: No. 18766,18766
• Citation: 351 P.2d 394,142 Colo. 500
• Parties: Byron CLIFF, doing business as The Ace-Hi Liquor Store, Plaintiff in Error, v. James G. GLEASON, doing business as Sales Realty Co., Defendant in Error.
• Court: Colorado Supreme Court

Page 394

351 P.2d 394

142 Colo. 500

Byron CLIFF, doing business as The Ace-Hi Liquor Store Plaintiff in Error, v. James G. GLEASON, doing business as Sales Realty Co. Defendant in Error.

No. 18766.

Supreme Court of Colorado, In Department.

April 25, 1960.

David B. Richeson, Harry J. Kahler, Denver, for plaintiff in error.

William J. Chisholm, Denver, for defendant in error.

PER CURIAM.

The parties to this cause will be referred to as they appeared in the trial court, where plaintiff in error was defendant, and defendant in error was plaintiff. Plaintiff sued to recover a broker's commission, based on an 'Exclusive Listing and Authority to Sell' contract, by the terms of which the defendant Byron Cliff, doing business as Ace-Hi Liquor Store, employed plaintiff James Gleason to find a buyer for his store.

Complaint was filed in Superior Court of the City and County of Denver, and in due course summons was personally served on the defendant Gleason in Jefferson County. The complaint incorporated as Exhibit A, a copy of the listing contract, providing for payment of commission.

Defendant filed a motion for change of venue under Rule 98, R.C.P. Colo., to Jefferson County, on the ground that defendant resided and was served, and the contract was to be performed in Jefferson County. In effect this is a motion for change of place of trial.

Hearing on said motion resulted in its denial by the Superior Court and retention of jurisdiction by it. Thereupon the defendant initiated writ of error in this Court, but afterward realizing the futility of such proceeding in the absence of final judgment, abandoned it, filed answer to the complaint, pleading, inter alia, lack of jurisdiction in the Denver court.

Upon trial the court found the issues for the plaintiff, awarded judgment in his favor for $800 plus interest, to which defendant sues out this writ of error.

The defendant contends that the trial court erred (1) in denying defendant's motion for change of venue, and (2) in awarding judgment contrary to the evidence.

We direct attention to the question of whether the court erred in denying motion for change of place of trial to Jefferson County.

From the record before us we ascertain that a 'hearing' was had, prior to trial, on defendant's motion to change venue, 'at the conclusion of which (reciting from the court's order) and the Court being fully advised in the premises' the motion was denied. The record is wholly silent as to any offers of testimony or documentary evidence by either party. The reason for the Court's ruling is not shown.

The burden of proof of the right to a change of venue of place of trial is, of course, upon the party who seeks the change. Fletcher and Gerelds v. Stowell, 17 Colo. 94, 28 P. 326; 56 Am.Jur. p. 67, Sec. 66; 92 C.J.S. Venue § 192, p. 932. But where, as here, there is involved the substantial right of a defendant to have a case against him tried in the County in which he resides, the party denying such right must at least balance the showing made by the moving party. Shelton v. Southern Kraft Corporation, 195 S.C. 81, 10 S.E.2d 341, 129 A.L.R. 1280, 1281.

At the time of the hearing, according to the record, the files before the Court, and upon which its decision need be based, contained only (1) the complaint, containing by reference the contract sued upon, which described the property listed as being in Jefferson County, did not specify the residence of either party to it, and was silent as to the place of performance; (2) the summons, issued out of Denver Superior Court, with return thereon showing personal service on defendant 'at his place of business, 2515 Sheridan Blvd., Jefferson County, Colorado'; and (3) the motion for change of venue, contents of which have already been described.

The Court was thus at the hearing on the motion faced with uncontroverted facts squarely placing the cause within the operation of Rule 98, viz. the defendant's residence in Jefferson County as alleged in his motion, service upon...