Crookston v. Centennial Eureka Min. Co.

• Citation: 44 P. 714,13 Utah 117
• Decision Date: 25 March 1896
• Docket Number: 688
• Court: Supreme Court of Utah
• Parties: WILLIAM CROOKSTON, RESPONDENT, v. CENTENNIAL EUREKA MINING COMPANY, APPELLANT

44 P. 714

13 Utah 117

WILLIAM CROOKSTON, RESPONDENT, v. CENTENNIAL EUREKA MINING COMPANY, APPELLANT

No. 688

Supreme Court of Utah

March 25, 1896

Appeal from the district court of the First judicial district Territory of Utah. Hon. W. H. King, Judge.

Action by William Crookston against the Centennial Eureka Mining Company, whose office and place of business was in the Third judicial district. Defendant filed a demurrer and moved for a change of venue from the First judicial district. Demurrer was overruled, and a change of venue denied, and defendant appeals.

Reversed and remanded.

Bennett Marshall & Bradley, for appellant.

D. D Houtz, R. Anderson, and Samuel A. King, for respondent.

It is claimed that plaintiff's counter affidavit (p. 9 of abstract) does not show "merit," and so is insufficient. It is true this affidavit does not state, that, he "stated all the facts were explained to counsel and that his counsel has advised him, and upon such advice he believes" he has a good cause of action. But plaintiff has made a sworn statement of facts, concerning his cause of action, and we invite the court's attention to his complaint (p. I abstract) which was at that time on file in the First district court, and it in of its self constitutes a stronger affidavit of merit, than the formal statement in an affidavit. The sworn complaint is in and of itself an affidavit of merit, and this with the counter-affidavit and all the proceedings on the part of the plaintiff, together with the circumstances in the case, were sufficient to justify the court in exercising its discretion. The fact that it would inconvenience plaintiff and his witnesses by a change of place of trial, was not controverted by defendant, and the court being fully advised of all the facts had the right to refuse the motion, subject to review only in case of abuse. Hanchett v. Finch, 47 Cal. 192; Edwards v. S. P. R. R. Co., 48 Cal. 460; Hall v. C. P. R. R. Co, 49 Cal. 454; Reavis v. Cowell, 56 Cal. 592; Pearson vs. McCahill, 22 Cal. 132.

The case of Jenkins v. The California Stage Co., 22 Cal. 588, cited by appellants, distinctly holds that "when a defendant applies for a change of place of trial on the ground" of residence, that plaintiff has the right to oppose the motion by showing that the convenience of witnesses "would be promoted by refusing the change," "and such facts," say the court, "should govern and control the court in determining the question whether the application for the change should be granted or not."

In this case the question was clearly before the court, and it must be presumed the "facts controlled" the court in detaining this motion.

MINER, J. ZANE, C. J. and BARTCH, J., concur.

OPINION

MINER, J.:

This action was brought in the First district court at Provo, to recover damages for personal injuries alleged to have been received by the plaintiff while working in defendant's mine at Eureka, Juab county, Utah. At the time of the commencement of this action, Juab county was within the limits of the First judicial district court at Provo. At the time when the injuries were alleged to have been received and when the action was brought, defendant was a corporation, organized in Utah, and having its principal office and business in Salt Lake City and county, in the Third judicial district; and in its articles of incorporation the principal office and place of business was stated to be fixed at Salt Lake City, and its general office, where its business was conducted and carried on, was in Salt Lake City. The greater portion of defendant's property was located in Juab county, where a greater portion of the work was carried on. The defendant filed its demurrer to the complaint, and also, in writing, demanded a change in the place of trial, based upon an affidavit setting forth the above facts, together with an affidavit of merit. The plaintiff opposed the motion for a change in the place of trial, and filed the following affidavit in opposition thereto: "William Crookston, being first duly sworn, upon oath says: That he is the plaintiff in the above-entitled case; that he is a resident of Eureka, Juab county, Utah, and has been for more than four years last past; that, in the above-entitled action, he seeks to recover damages for personal injuries received in working in the Blue Rock Mine, situate at Eureka, Juab county, Utah; that said injuries were received in this judicial district, and that all of his witnesses in said action reside in this district, and have so resided for more than a year last past; that, if said cause of action is transferred to the Third district court of this territory, it will greatly inconvenience the plaintiff herein, and compel him to expend a vast sum of money in order to obtain his witnesses and prosecute his case; that he firmly believes he has a good cause of action; that the defendant company is in business in this judicial district, and the greater portion of its property is situated in this district, and the greater portion of its work is performed in Juab county." The demurrer was overruled, and the motion...