Hale v. Barker

Citation70 Utah 284,259 P. 928
Decision Date08 September 1927
Docket Number4600
CourtSupreme Court of Utah
PartiesHALE et al. v. BARKER, District Judge

Original proceeding in prohibition by Rachel M. Hale and another, copartners, against George S. Barker, as Judge of the District Court of Weber County. Writ of mandate issued.

Writ of mandate issue directing the defendant court to reinstate case on its docket and proceed with it to a conclusion.

Woolley & Holther, of Ogden, for plaintiffs.

Irivne Skeen & Thurman, of Salt Lake City, for defendant.

GIDEON J. THURMAN, C. J., and STRAUP and HANSEN, JJ., concur. CHERRY, J., dissenting.

OPINION

GIDEON, J.

This is an original proceeding in this court. Plaintiffs seek a writ prohibiting the district court of Weber county from entering and carrying into effect an order transferring to Salt Lake county for trial a certain action pending in that court in which Rachel M. Hale and Lea Miles, copartners, are plaintiffs, and Central Trust Company, a corporation, A. E. L. Scanlon, and Sidney G. Saville are defendants.

The case is known as case No. 10357.

Petitioners here, who are plaintiffs in the action in the district court, are residents of Weber county. The gravamen of the action in the district court is the allegation that defendants closed up plaintiffs' place of business in Ogden City, Weber county, and wrongfully converted to their own use plaintiffs' furniture, fixtures, and a stock of millinery. Defendants in the action appeared severally, demurred to the complaint, made affidavit that they are residents of Salt Lake county, and upon that ground only sought to have the action removed to Salt Lake county for trial. Plaintiffs resisted the motion, contending that the court had no right or jurisdiction to order the removal of the case. A hearing was had. The matter was taken under advisement, and thereafter the district court of Weber county announced orally from the bench that the motion to remove was granted, but did not sign or enter any written order transferring the cause. At that state of the proceedings plaintiffs made application to this court for a writ prohibiting the cause from being transferred as aforesaid.

Upon the filing of the petition here, an order was issued requiring the judge of the district court of Weber county to show cause why the alternative writ issued upon the filing of the petition should not be made permanent. The order also restrained the said court from transferring the action during the pendency of this proceeding or until the further order of this court.

Defendant appeared and demurred to the petition on the ground that the same does not state facts sufficient to entitle plaintiffs to any relief, and likewise filed a motion to quash the alternative writ. Oral arguments were made and written briefs filed by counsel for the respective parties.

Two questions are presented: (a) Did the district court of Weber county, in ruling that it would grant the motion for a change of venue, exceed its authority and jurisdiction? (b) Have the plaintiffs the right, under the facts shown, to the relief sought by way of prohibition? We shall first consider the question as to the right of the court to make an order transferring the case from Weber county to Salt Lake county. This necessarily requires a consideration of the statute relating to the place of trial of actions. The sections particularly involved are Comp. Laws Utah 1917, §§ 6528, 6531, 6532, 6533.

In section 6532 it is provided that, if an action is not commenced in the proper county for trial, the action may be tried therein unless timely demand is made at the time of filing an answer or demurrer, and upon the filing of an affidavit of merit and demand in writing that the action be tried in the proper county.

Section 6533 provides that the court may, on motion, change the place of trial in the following cases:

"1. When the county designated in the complaint is not the proper county; 2. when there is a reason to believe that an impartial trial cannot be had therein; 3. when the convenience of witnesses and the ends of justice would be promoted by a change; 4. when from any cause the judge is disqualified from acting; * * * 5. when all of the parties to an action, by stipulation, or by consent in open court, entered in the minutes, may agree that the place of trial may be changed to any county in the state."

That section enumerates the grounds that will authorize a district court to transfer a cause for trial from one county to another. If the defendants in the district court were entitled to have their motion granted, it could be only by reason of the first ground designated; namely, that the case is not brought in the proper county. No attempt was made to show that there was prejudice on the part of the court in Weber county, or that an impartial trial could not be held there, or that the convenience of witnesses or the ends of justice would be promoted by a change, but defendants base their claim solely on the ground that they are residents of Salt Lake county.

As stated, the action is one for an alleged wrongful conversion of property by defendants in Weber county. The cause of action therefore arose in Weber county.

Section 6528, being one of the sections of the chapter entitled "Place of Trial," provides:

"When the defendant has contracted in writing to perform an obligation in a particular county of the state and resides in another county, an action on such contract obligation may be commenced and tried in the county where such obligation is to be performed or in which the defendant resides."

The subtitle to section 6531 is "In All Other Cases." That section, so far as material here, is as follows:

"In all other cases the action must be tried in the county in which the cause of action arises, or in the county in which any defendant resides at the commencement of the action."

Apparently the district judge was of opinion--and that is the contention of counsel representing the court--that under the wording of section 6531 the defendants, by complying with the provisions of section 6532, were of right entitled to have the cause transferred for trial to the county in which they reside. On the other hand, it is the contention of plaintiffs that, by reason of the fact that the cause of action arose in Weber county, they are by right entitled to have the action tried in that county.

This court has recently had occasion to discuss and determine the rights of a defendant in an action upon contract not in writing to have the cause tried in the county in which he resides. Buckle v. Ogden Furniture & Carpet Co., 61 Utah 559, 216 P. 684. In that action the plaintiff resided in Salt Lake county, and the defendant in Weber county. The action was instituted in Salt Lake county upon an alleged oral contract on the part of defendant to pay plaintiff an amount specified at Salt Lake City for goods sold and delivered. At the time of filing its answer the defendant in that action filed a motion and demand that the place of trial be changed to Weber county. The motion was denied. The grounds alleged in the motion were that the defendant was a resident of Weber county, and that it had not contracted in writing to perform any obligation in Salt Lake county, and that the alleged cause of action, if any, did not arise in Salt Lake county. In that case this court held that a defendant liable under a contract not in writing has the legal right to demand and to have the cause of action tried in the county in which he resides. In the course of the opinion it is said:

"Section 6531 provides that 'in all other cases' (that is, in all cases not otherwise provided for in the statute) the action may be tried in the county where the cause of action arises or where the defendant resides. The words 'where the cause of action arises' are referable to cases not on contracts, because the venue in actions on contracts, in respect of where they arise, is disposed of by section 6528, as above interpreted."

The proceeding in the district court under review is not one upon or growing out of contract either oral or written. The place of trial is therefore not controlled by section 5628, as was the Buckle Case, supra. The place of trial must be determined by other sections of the Code.

It would seem to be the plain intent of section 6531, supra, that, under the facts alleged in the complaint in the case in question here, the district court of Weber county or the district court of Salt Lake county has jurisdiction to try the issues and render judgment binding upon the parties. The language just quoted from the opinion in the Buckle Case indicates that such was the view of the court at the time of rendering that opinion. In our judgment had plaintiffs elected to institute the action in Salt Lake county, the district court of that county would have had jurisdiction to hear and determine the controversy. The language of the section quoted, if taken in its ordinary meaning, clearly indicates the intent of the Legislature was to give to the court of the county wherein the cause of action arises and the county in which the defendant resides, or either of them, jurisdiction to try the action under facts such as are alleged in the complaint here in question. In the very nature of things, a plaintiff, being the first to move, must determine in which of two counties he will file his suit. This right being given him by statute, it seems to us it must inevitably follow that the action in question here was instituted in the proper county, and that it was the official duty of the district court of Weber county to retain jurisdiction unless the transfer of the cause for trial to another county was granted upon a showing of the other, or some of the other,...

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8 cases
  • Floor v. Mitchell
    • United States
    • Supreme Court of Utah
    • February 11, 1935
    ...... 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 ......
  • Schramm-Johnson, Drugs v. Cox, Judge
    • United States
    • Supreme Court of Utah
    • March 28, 1932
    ...... discretion to do otherwise and refuses to grant it, mandamus. will lie to compel the court to change the place of trial. Hale & Miles v. Barker, 70 Utah 284, 259 P. 928; Pace v. Wolfe, 76 Utah 368, 289 P. 1102. If, however, such duty is not clear or plain, but is. ......
  • Davis Cnty. v. Purdue Pharma, L.P.
    • United States
    • Supreme Court of Utah
    • April 23, 2020
    ...asks us to interpret it to foreclose any inherent judicial power to transfer venue for pretrial purposes. Citing Hale v. Barker , 70 Utah 284, 259 P. 928, 931 (1927), Davis County asserts that the "[d]istrict courts of this state have only such authority to transfer for trial causes of acti......
  • Herzog v. Bramel, District Judge,
    • United States
    • Supreme Court of Utah
    • June 27, 1933
    ...... reinstate the cause, assume jurisdiction, and proceed with. it. We have held that several times. Harris v. Barker, Judge (Utah) 12 P.2d 577; Richards. v. District Court of Weber County, 71 Utah 473, 267. P. 779; Hale v. Barker, Judge, 70 Utah 284,. 259 P. 928; ......
  • Request a trial to view additional results

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