Elam v. Griffin

• Decision Date: 30 June 1887
• Docket Number: 1,254.
• Citation: 14 P. 582,19 Nev. 442
• Parties: v. GRIFFIN and others. ELAM and others
• Court: Nevada Supreme Court

14 P. 582

19 Nev. 442

ELAM and others v. GRIFFIN and others.

No. 1,254.

Supreme Court of Nevada

June 30, 1887

Appeal from an order of the district court in and for Lincoln county, granting change of venue, upon motion of defendants.

C. H Patchen, G. S. Sawyer, and T. Coffin, for appellants.

Baker & Wines and T. J. Osborne, for respondents.

BELKNAP J.

The defendants are residents of Eureka county, and are sued in an action of debt in the district court of Lincoln county. Upon their motion, the place of trial of the action was changed to the county of their residence, but no demand in writing therefor was made, as contemplated by section 3043, Gen. St. ^[1] The object of the demand is to allow the plaintiff an opportunity of voluntarily correcting his error by amendment, stipulation, or otherwise, without the expense and delay of a motion. Vermont C. R. Co. v. Northern R. Co., 6 How. Pr. 106. By omitting to make the demand, respondents waived the right to have the case heard in Eureka county, and the action became triable in Lincoln county. Hasbrouck v. McAdam, 4 How. Pr. 342; Houck v. Lasher, 17 How. Pr. 520; Milligan v. Brophy, 2 Code Rep. 118; Estrada v. Orena, 54 Cal. 407; Byrne, v. Byrne, 57 Cal. 348; Watkins v. Degener, 63 Cal. 500.

Order reversed and cause remanded.

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Notes:

^[1] Gen. St.§ 3043, is as follows: "If the county designated for that purpose [trial] in the complaint be not the proper county, the action may notwithstanding, be tried therein, unless the defendant before the time for answering expire, demand in writing that the trial be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court, as is provided in this section. The court may, on motion, change the place of trial in the following cases First, when the county designated in the complaint is not the proper county; second, when there is reason to believe that an impartial trial cannot be had therein; third, when the convenience of witnesses and the ends of justice would be promoted by the change fourth, when, from any cause, the judge is disqualified from acting in the action. When the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is changed, unless otherwise provided by consent of the parties in writing, duly filed, or by order of the court; and the papers shall be filed or transferred...