Floor v. Mitchell

• Decision Date: 11 February 1935
• Docket Number: 5413
• Court: Utah Supreme Court
• Parties: FLOOR v. MITCHELL et al

41 P.2d 281

86 Utah 203

FLOOR v. MITCHELL et al

No. 5413

Supreme Court of Utah

February 11, 1935

Appeal from District Court, Fifth District, Iron County, Le Roy H Cox, Judge.

Action by Nick Floor against Walter C. Mitchell and others. From a judgment of dismissal, plaintiff appeals.

AFFIRMED.

Chris Mathison, of Salt Lake City, and D. B. Hempstead, of Washington, D. C., for appellant.

F. W James, of Salt Lake City, for respondents.

MOFFAT Justice. ELIAS HANSEN, C. J., and FOLLAND and EPHRAIM HANSON JJ., WOLFE, Justice, concurring.

OPINION

MOFFAT, Justice.

The action herein is brought upon what is referred to as a conditional sale contract to recover a balance alleged to be due thereon with interest and attorney's fees. The subject matter of the contract relates to the sale and installation at Parowan, Iron county, Utah, of a "Talking Picture Reproducing Equipment." The complaint was filed in the district court of the Third judicial district of the state of Utah in and for Salt Lake county.

Among other matters not necessary to set forth fully, it is alleged: That on or about the 15th day of March, 1930, the National Filmfone Corporation entered into a conditional sale agreement in writing with the defendants whereby they agreed to purchase a talking picture equipment according to the terms of a written contract and referred to as an "Installation." The equipment was to be installed for use in the Aladdin Theatre at Parowan City, Iron county, Utah; the installation was made; the sum of $ 500, the initial payment, was made; the sum of $ 325 was to be paid upon completion of the "Installation," and the balance of $ 1,500 was to be paid in fifteen equal monthly payments; the defendants paid $ 162.50 in part payment of the $ 325 payment and have failed, refused, and neglected to make any other or further payments; there is a balance due and owing in the sum of $ 1,625 besides interest. Prior to the commencement of the action the National Filmfone Corporation, for value, assigned to the plaintiff, Nick Floor, the contract and all to become due thereon. Judgment is demanded accordingly.

Attached to the complaint is a purported copy of what plaintiff alleges to be the agreement. Defendants claim there were other matters included in the agreement in the form of a separate written memorandum. This memorandum, alleged by the answer to have been made and signed at the same time, constitutes the basis for errors assigned on this appeal, aside from the question of change of venue.

After filing the complaint in Salt Lake county, and before the time within which the defendants were required to answer, they filed a general demurrer to the complaint. At the same time they filed a motion for a change of venue, asking to have the cause transferred to Iron county for trial. No question is raised upon the demurrer or the disposition made of it. The motion for change of venue from Salt Lake county to Iron county came on for hearing at Salt Lake county. An affidavit on behalf of defendants in support of the motion was made and filed by counsel for defendants at the time of filing the demurrer and motion for change of venue. In opposition thereto, a counter affidavit on behalf of plaintiff was made and filed by counsel for plaintiff.

The motion set forth four reasons for a change of venue: (1) That the cause of action arose at Parowan, Iron county, Utah; (2) that all of the defendants are residents of Iron county; (3) that the action must be tried in the county wherein the cause of action arose; and (4) that convenience of witnesses would be promoted by the change. The judge of the district court of Salt Lake county ordered that the cause be transferred to Iron county for trial. After transfer of the cause to the district court of the Fifth judicial district of Iron county, the defendants' demurrer was overruled. Defendants answered. The cause was tried to the court and judgment rendered in favor of defendants. Plaintiff's complaint was dismissed.

Several errors are assigned. In argument, however, they are all grouped under two headings: (1) Change of venue, and (2) merits of the cause. The merits of the cause and the basis upon which all the other factors rest, relate to the written memorandum alleged to have been made at the time the agreement was signed. Put otherwise, the plaintiff and appellant claims the filled-in form of the printed contract constituted the complete agreement. Defendants and respondents maintain that the filled-in form of the printed contract, with the additional memorandum, constituted the agreement. The trial court accepted defendants' view, hence appellant's assigned errors. There was an additional matter raised by defendants' answer to the effect there was no valid assignment of the contract.

We shall discuss the errors assigned in the order and as the appellant has grouped them. Appellant argues that an affidavit of merits and a demand in writing are both conditions precedent to the granting of a motion for a change of venue, and cites authorities in support of the position taken. The statute relating to the right to change of venue and the waiver thereof if not demanded, reads:

"If the county in which the action is commenced is not the proper county for the trial thereof, the action may nevertheless be tried therein, unless the defendant at the time he answers or demurs files an affidavit of merits, and demands, in writing, that the trial be had in the proper county." R. S. Utah 1933, 104-4-8.

The foregoing section is the revised form as found in the 1933 revision. Some verbal changes have been made so that section 6532, Comp. Laws Utah 1917, differs in wording, but the changes do not in any way affect this proceeding. Section 104-4-8, supra, is found in substantially the same form in many of the codes of procedure, and has been considered in numerous cases. Cragun v. Second District Court, 83 Utah 456, 30 P.2d 205.

In the instant case the question is not one of jurisdiction but of venue. "Jurisdiction" as here used refers to the power to decide the issue on its merits; "venue" refers to the place where the cause sued upon should be tried. The change of venue objected to by appellant is based upon an alleged failure to comply on the part of the respondents with the section of the statute above quoted, in that defendants failed to file such an affidavit of merits as is required by the statute. The cause of action being transitory, the district court of Salt Lake county had jurisdiction of the subject-matter. Summons duly and properly served, or appearance by filing a general demurrer, gave the court jurisdiction of the parties.

At the time the demurrer was filed the defendants made demand for change of venue by filing a written motion for "change of venue" and a document entitled "affidavit of merits on motion for change of venue." It is this affidavit which is attacked upon the ground it is not an affidavit of merits required by the statute. A counter affidavit on the part of plaintiff was filed. The issue thereon was duly noticed for hearing. After presentation to the court the motion was taken under advisement. Thereafter the motion was granted and an order entered transferring the cause to Iron county in the Fifth judicial district for trial.

No question is raised by appellant that respondents (defendants) did not, at the time they demurred, file an affidavit and made demand in writing that the trial be had in the proper county. Objection is made in this court, and for the first time raised here, that the affidavit filed on behalf of defendants was fatally defective and therefore was not an affidavit of merits. It is conceded by respondents that the so-called affidavit of merits is not one going primarily to the merits of the cause, but is rather one of merits upon the motion. In some of the particulars stated, the affidavit of merits as to the merits of the cause of action referred to by the statute contains some of the same matters proper to be set out as to the merits of the motion for change of venue. Appellant made no motion to strike the affidavit for insufficiency or otherwise, made no application for a writ of prohibition or mandate on the ground of depriving him of a speedy remedy, as he might have done if he thought his grounds for opposition to the motion were well taken. Hale v. Barker, Dist. Judge, 70 Utah 284, 259 P. 928; Atlas Acceptance Corporation v. Pratt, Dist. Judge, 70 Utah 284, 259 P. 928; Atlas Acceptance Corporation v. Pratt, Dist. Judge, 85 Utah 352, 39 P.2d 710, 714. By this we do not mean to say if a proper record is made, the question when properly presented to the trial court may not be reviewed on appeal. Crookston v. Centennial Eureka Min. Co., 13 Utah 117, 44 P. 714; Buckle v. Ogden Furniture & Carpet Co., 61 Utah 559, 216 P. 684. What we do say is that the affidavit of merits having been filed, the affirmations thereof countered, and the matter having been submitted to the trial court upon the issues thus formed without objection having been made to the form or substance of the affidavit, appellant cannot attack the validity of the trial court's order for the first time in this court for insufficiency of the affidavit. Had the trial court's attention been called to the matter, the affidavit might have been stricken or defendants might have been permitted to amend, or file a supplemental affidavit. The statute is procedural and should be given a liberal construction. O'Hanion v. Great Northern Ry., 76 Mont. 128, 245 P. 518. One seeking change of venue must bring himself within the statute. Danielson v. Danielson, 62 Mont. 83, 203 P. 506.

The order of the trial court does not disclose the ground upon which the order was made nor the reason...