DeWein v. Osborn

• Citation: 12 Colo. 407,21 P. 189
• Parties: DE WEIN et al. v. OSBORN.
• Decision Date: 29 March 1889
• Court: Supreme Court of Colorado

21 P. 189

12 Colo. 407

DE WEIN et al. v. OSBORN.

Supreme Court of Colorado

March 29, 1889

Commissioners' decision. Appeal from county court, Pueblo county.

The appellee, Osborn, brought this action against the appellants V. and L. K. De Wein, in the county court of Pueblo county. Leaving out the formal parts, and the allegation that the amount sued for was not in excess of $2,000, the complaint is as follows: '(1) That on the 21st day of September, A. D 1883, at Denver, Colo., the defendants did for value received execute and deliver to plaintiff their promissory note in writing, of which the following is a copy: '$682 62-100. Denver, Colo., Sept. 21st, 1883. On or before one year from date I promise to pay B. H. Osborn six hundred eighty-two and 62-100, without interest, value received, payable at Denver Colorado, not negotiable, and subject to losses on such accounts as are not in P. & L. account from Oct. 25th, 1882 to Sept. 21st, 1883, of V. De Wein, Son & Co.'s ledger; B. H. Osborn guarantying one-half losses on said accounts. V. DE WEIN. L. K. DE WEIN.' (2) That there have been no losses on such accounts as are not in P. & L. (profit and loss) account from October 25, 1882, to Sept. 21, 1883, of V. De Wein, Son & Co.'s ledger aforesaid, and that said sum of six hundred eighty-two and 62-100 dollars is now wholly due, and payable.' The appellants, before making answer, applied to the court for a change of venue to the county of Arapahoe, on the alleged grounds, supported by affidavit, that they were residents of the latter county; that the action is founded on a contract to be performed in said county of Arapahoe; that the action accrued, the money was made payable, and the summons was served upon defendants, in said county of Arapahoe. The court denied this application. The defendants thereupon filed an answer, in the first defense of which the averment contained in the second paragraph of the complaint is denied.

The defendants then renewed their application for a change of venue for the same reasons assigned in their first application, and for the further reason that it would be more convenient for the witnesses. This application was also denied. A demurrer to the first defense was sustained on the ground that it did not state facts sufficient to constitute a defense, and, the defendants having elected to stand by their answer, the plaintiff filed a replication to the second defense. A jury was waived, and a trial was had to the court, which resulted in a judgment in favor of the plaintiff for the sum of $722.38 and costs of suit, from which judgment the defendants have appealed to this court.

RISING C., dissenting.

L. B. France, for appellants.

N. B. Wescott, for appellee.

DE FRANCE, C., ( after stating the facts as above.)

The first and second errors assigned go to the rulings of the court denying the applications for a change of venue. From the holdings announced by...