Hyde v. Harkness

• Decision Date: 01 January 1875
• Citation: 1 Idaho 601
• Parties: Jordan W. Hyde, Respondent, v. H. O. Harkness, Appellant.
• Court: Idaho Supreme Court

1 Idaho 601

Jordan W. Hyde, Respondent, v. H. O. Harkness, Appellant.

Supreme Court of Idaho

January 1, 1875

PLACE OF TRIAL-CHANGING-PRACTICE.-The question of changing the place of trial in order that the defendant may have an impartial trial, involves an issuable fact, and when an application is made for that purpose upon affidavits, it is proper to admit counter-affidavits to enable the court to judge of the necessity for such change.

IDEM-BURDEN OF PROOF.-The burden of showing that an impartial trial cannot be had is on the party making the application, and even if there is a slight preponderance of evidence in favor of the application, this court will not reverse the action of the court below for that reason.

IDEM-DISCRETION.-Granting a change of venue is a matter in the sound discretion of the court, and will not be reviewed except in cases of abuse.

APPEAL from the District Court, Third Judicial District, Oneida County.

L. P Higbee, for the Appellant. F. E. Ensign and Huston & Gray for the Respondent.

WHITSON J.,

delivered the opinion.

HOLLISTER, J., concurred.

This is an appeal under section 295 of the Civil Practice Act from an order of the district court of Oneida county, refusing to change the place of trial under subdivision 2 of section 21 of the same act. The errors complained of by the appellant committed by the court below, are: 1. In hearing and considering the counter-affidavits of the plaintiff in opposition to the motion, and affidavits of the defendant to change the place of trial of the action. 2. In refusing to grant the motion to change the place of trial.

It is contended by appellant's counsel that there have never been any adjudications as to the right of a party to file counter-affidavits in opposition to a motion for a change of venue, but that it is simply a matter of practice, to be regulated by this court for the direction of the district courts. If this position be correct, the court below could commit no error until some practice is established on the subject, because an inferior court cannot be held to account for an error in the absence of law or the precedence of a higher court against the action complained of. But we cannot agree with the learned counsel for the appellant that there have been no adjudications on this point. The supreme court of California, in the case of Pierson v. McCahill, 22 Cal. 127, say: "The granting of time to file counter-affidavits, on a motion to change the place of trial is a matter of discretion in the lower court, and will not be reviewed on appeal." On the well-known principle that the greater includes the less, we can come to no other conclusion than that if it is no error to grant time to file counter-affidavits, it can be no error to allow them to be filed, and as a consequence allow them to be used on the hearing of the motion. In fact, the right seems never to have been doubted in California under a statute identical with ours. The right seems to have been conceded...